HomeMy WebLinkAbout2017-2895.Union.20-03-11 DecisionCrown Employees
Grievance Settlement
Board
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Toronto, Ontario M5G 1Z8
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Commission de
règlement des griefs
des employés de la
Couronne
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Toronto (Ontario) M5G 1Z8
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Téléc. : (416) 326-1396
GSB# 2017-2895; 2017-3879
UNION# 2017-0999-0041; 2018-0999-0006
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Union) Union
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The Crown in Right of Ontario
(Treasury Board Secretariat and the
Ministry of the Solicitor General) Employer
BEFORE Ken Petryshen Arbitrator
FOR THE UNION Katherine Ferreira
Koskie Minsky LLP
Counsel
FOR THE EMPLOYER Paul Meier
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING September 13 and 16, 2019
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Decision
[1] I have two Union grievances before me that complain about the way the
Employer resumed the process of salary progression under the 2018-2021 Unified
Collective Agreement (“Unified CA”) and the 2018-2021 Correctional Collective
Agreement (“Correctional CA”). The grievance dated August 24, 2017, relates to the
Unified Bargaining Unit (“the UBU”) and the grievance dated February 12, 2018, relates
to the Correctional Bargaining Unit (“the CBU”). There was a salary progression freeze
during the last two years of the 2015-2017 Unified and Correctional CAs. The Union
grievances essentially raise the question of how salary progression should resume
under the relevant Collective Agreements after the ending of a salary progression
freeze. This question is only of interest for employees who had not reached the
maximum step of the salary progression range prior to the imposition of the salary
progression freeze.
[2] The parties made a considerable effort to litigate the Union grievances as
efficiently as possible. To this end, counsel devoted some time to develop an agreed
statement of facts (“ASF”) and to compile a Book of Documents. Counsel agreed that
any document contained in the Book of Documents was subject to the right of a party to
challenge its admissibility or relevance. The Union did challenge the relevance of a
number of documents. Counsel also agreed to exchange casebooks in advance of the
hearing. Given these efforts, the parties found it unnecessary to call witnesses and the
hearing was completed after two days of submissions by counsel.
[3] Before turning to the key circumstances in this case and the positions taken
by the parties, I will set out the ASF. The ASF includes an explanation of how salary
progression along the salary grid usually works and some bargaining and interest
arbitration history for the relevant 2015-2017 and 2018-2021 Collective Agreements.
The ASF provides as follows:
Agreed Statement of Facts
1. The Ontario Public Service (OPS) assigns each position a classification:
for example, Office Administration 08 (08OAD), Fire Safety Officer 2 or
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Correctional Officer 2. These classifications are listed in the Collective
Agreement (in either the "Unified Salary Schedule" or the "Correctional
Salary Schedule"). Each classification is assigned an hourly or weekly
salary progression range, as outlined in the Collective Agreement;1 each
classification's salary progression range has a series of "steps," from the
lowest step (normally, the starting wage) to the highest step (which is the
maximum wage of the classification).
2. When an employee is hired, s/he is hired into a specific classification and
a specific step in the salary progression range. Under the 2015-2017
Collective Agreement, most classifications have seven steps in the salary
progression range for the classification.
3. Normally, an employee commences working in a classification at the
lowest step of the salary progression range.2
4. As a general principle, employees will progress incrementally through the
salary range to the maximum of the range.3 An anniversary date is
established for each employee. Generally, merit increases are effective
on an employee’s anniversary date. However, some classifications have
“semi-annual progression” (e.g. “Agricultural Specialist 1)4 or “semi-annual
progression until #th [sic] step” (e.g. “Office Administration 6” with semi-
annual progression until Step Two).5
5. The employee’s progression is to the next step in the salary range until the
employee reaches the maximum of the range as set out in the Salary
1 2015-2017 Collective Agreement, Tab 1 of the Book of Documents: There are a few exceptions. At page 412 of
the 2015 – 2017 Collective Agreement, the parties listed seven classifications in the Unified Salary Schedule “for
which there no equivalent classifications in the Civil Service”. These classifications “were established for pay
purposes for employees with an appointment status of fixed term”. The parties clarified that, for each of these seven
classifications, they are “not a salary progression range. These are individual employee rates used by ministries”.
2 2015-2017 Collective Agreement, Tab 1: There may be exceptions: e.g., a new hire with additional
skills/experience or an employee is “promoted” and other rules, e.g., where the duties of an employee are changed as
a result of reorganization or reassignment of duties and the position is reclassified to a class with a lower maximum
salary (see Article 7 of the 2015 – 2017 Collective Agreement’s “Pay Administration” provisions).
3 Public Service Commission, Merit Increases Directive, Tab 2, “Principles”, page 1, section 6.
4 2015 – 2017 Collective Agreement, Tab 1: See page 337.
5 2015 – 2017 Collective Agreement, Tab 1: See page 378, “SA-02”.
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Schedules (although some maximum rates to which an employee may
progress are amended by the Collective Agreement’s applicable “General
Notes and Allowances”6).
6. In 2014, when bargaining between OPSEU and the Crown began, 34.9%
of the bargaining unit members in the Unified Bargaining Unit had not
reached the maximum of their applicable salary range. 19.1% of the
bargaining unit members in the Correctional Bargaining Unit members had
not reached the maximum of their applicable range.7
THE JANUARY 1, 2015 TO DECEMBER 31, 2017 DEALS
7. On October 3, 2014, OPSEU served the Crown (the Employer, as
represented by Treasury Board Secretariat) with notice of its intent to
meet and negotiate changes to the OPSEU Collective Agreement which
comprises the Central Collective Agreement, the Unified Collective
Agreement and the Correctional Collective Agreement.8
Unified Bargaining Unit
8. On September 22, 2015, the Crown and OPSEU reached a tentative
agreement with respect to the Central and Unified Bargaining Units.
9. Article 6.1 of Section 18 (“Negotiations”) of the OPSEU Policy Manual9
states:
6 2015 – 2017 Collective Agreement, Tab 1: For example, the “General Notes and Allowances, Unified Bargaining
Unit” (starting at p.331 of the 2015 – 2017 Collective Agreement) contains a Note (“G15”) for employees in
positions classified as E.E.G. Technician 2 or E.E.G. Technician 3 in the Institutional and Health Care Classification
Group, stating that these employees “may be paid one (1) rate above each listed rate in the salary range. The new
maximum rate to which an employee in receipt of this note may progress is contained in parentheses”.
7 Submissions of the Union in the Matter of an Arbitration between OPSEU and the Crown dated March 28, 2016,
Tab 3, page 14.
8 Letter dated October 3, 2014 from Ms. Ruth Hamilton, OPSEU OPS Lead Negotiator to Mr. Reg Pearson,
Associate Deputy Minister, Bargaining and Compensation, TBS, Tab 4.
9 OPSEU Policy Manual, Negotiations, Section 18, Article 6 (excerpt), Tab 5.
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Any collective agreement negotiated in the name of the union with the
employer must be ratified by the members and signed by the members of
the team and the president of OPSEU.
10. Article 6.4 of the OPSEU Policy Manual states:
OPS members shall receive a written summary of the proposed contract
changes,…[and] a summary of the issues and/or offer to be voted on.
11. In its Table Talk publication (Issue 28) dated October 9, 2015, the Union
set out “in considerable detail all the new provisions contained in the
tentative agreement”.10 Under the heading “Salary Grid Progression
Freeze”, the Union stated:
● Employees who have not reached their maximum salary will not progress
through the salary scale in 2016 or 2017.
● Your team fought very hard and was successful in fighting off the
proposed 12-step grid, as well as a five per cent lower starting level for
new hires and those changing positions.
12. On October 30, 2015, the parties ratified a new three-year Central/Unified
OPSEU Collective Agreements (2015-2017).
13. Under “PART C – SALARY AND TERM” of the Unified Collective
Agreement, the parties agreed as follows at Article UN 16 “Salary”:
UN 16.1.1 Effective January 1, 2015, the salary rates in effect on
December 31, 2014, shall remain in effect, and are contained in the Salary
Schedule set out in the 2013-2014 Collective Agreement.
UN 16.1.2 All salary rates to be increased across the board as follows:
January 1, 2017 – 1.4%
The salary rates in effect on January 1, 2017 for all classification are
contained in the Salary Schedule attached.11
10 Table Talk, Issue 28 dated October 9, 2015, Tab 6, page 2.
11 2015-2017 Collective Agreement, e.g., the “Unified Salary Schedule”, Tab 1, page 337.
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14. The Parties also agreed to a 1.4 per cent lump-sum payment for all
members of the bargaining unit as of January 1, 2016 (the one-time lump
sum payment did not form part of the employees’ base salaries).12
15. Appendix UN 8 of the 2015-2017 Unified Collective Agreement stated:13
Letter of Understanding
…
Re: Salary Progression Freeze
The parties agree that notwithstanding any other article in the collective
agreement, all employees’ salary rates as of January 1, 2016 shall be
fixed at that rate and no employee shall be entitled to any salary
progression from January 1, 2016 to December 31, 2017. Employees
hired or appointed into positions in the OPSEU bargaining unit during the
term of the collective agreement shall have their salary fixed at the salary
rate received upon hire or appointment and shall not be entitled to any
salary progression for the duration of the collective agreement.
Correctional Bargaining Unit
16. Following ratification of the Central and Unified Bargaining Unit collective
agreements, the Employer and OPSEU continued to bargain towards a
Correctional Collective Agreement for the Correctional Bargaining Unit.
17. On November 24, 2015, the parties reached a tentative agreement for the
Correctional Bargaining Unit.14
18. In the tentative agreement, the parties agreed to monetary items that were
nearly identical to those that had been previously ratified in the Unified
Collective Agreement, including the salary progression freeze from
January 1, 2016 to December 31, 2017. Item #2 of Appendix B (“U18”)
appended to the tentative agreement, under the heading “New Appendix –
12 Table Talk, Issue 28 dated October 9, 2015, Tab 6, page 1.
13 2015-2017 Collective Agreement, Appendix UN8, Letter of Understanding, “Salary Progression Freeze” dated
October 30, 2015, Tab 1, page 330.
14 November 2015 Memorandum of Settlement, Tab 7(c) to Tab 7(f).
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Salary Progression Freeze”, stated: “No progression through the salary
grids in 2016 or 2017”.15
19. On December 10, 2015, members of the OPSEU Correctional Bargaining
Unit voted to reject the tentative agreement, voting 67% against the deal.
20. On January 9, 2016, the Employer and OPSEU reached a final agreement
for the Correctional Bargaining Unit.16
21. In the final agreement, the parties agreed to incorporate previous tentative
agreement items and agreed to refer certain “matters remaining in dispute
between them to an interest arbitrator for final and binding determination”.
Paragraph 6 of the final agreement stated:17
The parties acknowledge that the following Correctional Category
Agreement matters remain in dispute and shall be referred to
arbitration in accordance with this MOA:
i. Special wage adjustments for all members of the correctional
bargaining unit for the term of January 1, 2016 to December
31, 2016, if any.
ii. Special wage adjustments for all members of the correctional
bargaining unit for the term of January 1, 2017 to December
31, 2017, if any.
iii. The issue of progression through the pay grids.
22. Paragraph 8 of the final agreement stated:
Pending the issuance of the final and binding decision…, the parties agree
that all members of the correctional bargaining unit shall continue to
progress through the pay grids as set out in the Correctional Salary
Schedule Salary Rates section of the Correctional Category Agreement
with the term of January 1, 2013 to December 31, 2014. The parties
agree that the final and binding decision will be applied upon its issuance,
with any necessary retroactive adjustments.
15 Appendix B (U18), Tab 7(f).
16January 2016 Memorandum of Agreement (Tab 7(a)) and Memorandum of Settlement (Tab 7(b)).
17 MOS, Tab 7(a), page 2.
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23. In its Table Talk publication (Issue 43) dated January 9, 2016, the Union
stated:18
As of now, members who have not reached the top of the pay grid will
move up one step if they were hired before 2015, based on the
anniversary of their hire. Those who have still not reached the top of the
grid will move up another step in 2016 if their anniversary date occurs
before the arbitrator rules on wages.
The parties agree that the goal is for the arbitrator to rule before March 31,
2016. In his ruling, the arbitrator will decide whether movement through
the grid will continue through the rest of 2016 and 2017.
2016 COR Interest Arbitration Submissions
24. In its submission to Arbitrator Burkett dated March 28, 2016, the Union
opposed any freeze to movement through the salary progression range in
2016 and 2017.19 The Employer also made its submissions to Arbitrator
Burkett in support of the salary progression freeze on March 28, 2016.20
2016 Burkett Interest Arbitration Decisions
May 26, 2016 Decision
25. On May 26, 2016, Arbitrator Kevin Burkett issued his interest arbitration
decision and ordered the implementation of a salary progression freeze for
the Correctional bargaining unit in 2016 and in 2017 (i.e., same as the
Unified bargaining unit). Arbitrator Burkett also imposed special wage
adjustments of three per cent for correctional staff and two per cent for
probation staff.
18 Table Talk, Issue 43 dated January 9, 2016, Tab 8, page 2.
19 Submissions of the Union in the Matter of an Arbitration between OPSEU and the Crown dated March 28, 2016,
Tab 3, pages 13-15.
20 See excerpts of the Employer’s Interest Arbitration Submissions: “Introduction” Section at Tab 9, pages 1-2, 9;
“The Free Collective Bargaining Principle Applicable to Interest Arbitration – The Replication Principle” Section
at Tab 10; and “Issue 1: Progression Through the Salary Grid” Section, Tab 11, page 1.
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26. In the decision, Arbitrator Burkett stated:21
The "net zero" threshold is met with the 2015 wage freeze, the 2016 1.4%
lump sum payment and the 2017 1.4% across-the-board increase with the
negotiated cost containments relating to LTIP, termination pay and WSI
benefits along with the freeze to progression through the ranks.
27. As a result of Arbitrator Burkett’s decision, the parties appended Appendix
COR38 dated May 26, 2016 to the OPSEU 2015-2017 Correctional
Collective Agreement. Appendix COR38 stated:22
Re: Letter of Understanding
Salary Progression Freeze
The parties agree that notwithstanding any other article in the collective
agreement, all employees’ salary rates as of January 1, 2016 shall be
fixed at that rate and no employee shall be entitled to any salary
progression from January 1, 2016 to December 31, 2017. Employees
hired or appointed into positions in the OPSEU bargaining unit during the
term of the collective agreement shall have their salary fixed at the salary
rate received upon hire or appointment and shall not be entitled to any
salary progression for the duration of the collective agreement.
August 18, 2016 Decision
28. On July 18, 2016, OPSEU made supplementary submissions to Arbitrator
Burkett regarding disputed implementation issues. With respect to the
salary progression freeze, the issue was whether the salary progression
freeze in 2016 (i.e., “no employee shall be entitled to any salary
progression from January 1, 2016…”) was effective January 1, 2016 or
from the date of the Award (May 26, 2016).23 The Employer filed its
response to OPSEU’s supplementary submissions on July 26, 2016.24
29. On August 18, 2016, Arbitrator Burkett released his supplementary award.
In the decision, he clarified that the salary progression freeze should apply
21 Arbitrator Burkett Interest Arbitration Award dated May 26, 2016, Tab 12, page 4.
22 2015-2017 Collective Agreement, Appendix COR38, Letter of Understanding, “Salary Progression Freeze” dated
May 26, 2016, Tab 1, page 498.
23 Supplemental Submission of the Union in the Matter of an Arbitration between OPSEU and the Crown, dated July
18, 2016, Tab 13, pages 3-4.
24 Employer Response to OPSEU Supplemental Submission, dated July 26, 2016, Tab 14, pages 4-5.
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to the entire calendar years of 2016 and 2017; that affected employees
would be reverted back to the previous step in the grid (i.e., those
employees who had received a merit increase in 2016 prior to the date of
his Award); and that those same employees be required to repay any
overpaid wages. In his decision, the Arbitrator stated:25
It is clear from the rationale used to support the awarding of the grid
freeze effective for 2016 and 2017 (i.e. replication of the net zero public
sector bargaining pattern which included the grid freeze) that the freeze
would apply across the board.
THE JANUARY 1, 2018 TO DECEMBER 31, 2021 DEALS
30. On June 2, 2017, the Employer and OPSEU reached tentative extension
agreements (or “rollover”) for both the Unified and Correctional Bargaining
Units. The parties agreed that the terms for both the Unified Collective
Agreement and for the Correctional Collective Agreement, if ratified, would
be from January 1, 2018 to December 31, 2021.
31. The Unified and Correctional Bargaining Units had negotiated their own
respective tentative extension agreements.26
32. Pursuant to changes to the Crown Employees Collective Bargaining Act,
1993 effective December 2016, the Correctional Bargaining Unit had a
standalone collective agreement and access to interest arbitration in lieu
of the right to strike in the event of a collective bargaining impasse.
Rollover Ratification
33. On June 11, 2017, the Union released a “Notice of ratification vote”,
stating:27
OPSEU members in the Ontario Public Service (OPS) will vote June 20,
21 and 22 on a government offer to “roll over” their existing collective
25 Arbitrator Burkett Interest Arbitration – Supplementary Award, Tab 15, page 4.
26 Extension Agreement between the Crown and OPSEU applicable to the Unified Bargaining Unit, dated June 2,
2017, Tab 16.
27 OPSEU Notice of Ratification Vote, dated June 11, 2017, Tab 17.
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agreements with a number of positive changes – and no demands for
concessions from OPSEU members.
34. On Friday June 16, 2017, OPSEU posted a notice to their website titled
“OPS Tentative Agreements – Questions and Answers”.28 The posting
contained a series of questions and answers, related to the Employer’s
June 2, 2017 extension offer.
35. Question 1 of the posting is stated: “Which appendices in the current
collective agreement are being renewed?”. The answer to Question 1 is
stated as follows:
All Appendices will be renewed with the following exceptions:
- Appendix UN8 & Appendix COR 38 – Salary Progression Freeze
Employees will begin to progress through the grid as of January 1,
2018 from where they were fixed on the grid on January 1, 2016.
- Appendix COR33 – Administrative Compensating Leave
The current Appendix ends on December 31, 2017.
36. OPSEU also held a telephone town hall for its members.29
37. On June 22, 2017, Unified Bargaining Unit members voted to ratify the
Unified Bargaining Unit extension agreement. The Parties promulgated a
Unified Salary Schedule, appended to the 2018-2021 Unified Collective
Agreement.30
38. On June 22, 2017, Correctional Bargaining Unit members voted to reject
the Correctional Bargaining Unit extension agreement. Consequently, the
28 OPSEU OPS Tentative Agreements, Questions and Answers, Tab 18. Note that in accordance with Article 6.4 of
the OPSEU Policy Manual, “OPS members shall receive a written summary of the proposed contract changes, … a
summary of the issues and/or offer to be voted on summary of the proposed contract changes” (see OPSEU Policy
Manual, Negotiations, Section 18, Article 6 (excerpt), Tab 5).
29 Town Hall Transcript (excerpts), Tab 19, e.g., see pages 3, 5-6. And see Articles 6.2 & 6.5 of the OPSEU Policy
Manual, Negotiations, Section 18, Article 6 (excerpt), Tab 5
30 Unified Salary Schedule, Appendix A to the 2018-2021 Unified Collective Agreement (excerpt), Tab 20.
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Employer and OPSEU commenced collective bargaining for a Correctional
Bargaining Unit Collective Agreement on December 5, 2017.
2018 Reintroduction of Salary Progression
39. On February 26, 2018, the Employer began implementing salary
progression effective January 1, 2018. As announced to all OPSEU
represented employees on January 24, 2018 in the HR Communicates
publication, under the heading “Reinstatement of salary progression:
OPSEU”:31
The salary progression freeze that was in place for employees in OPSEU’s
Unified and Correctional bargaining units ended on December 31, 2017. Eligible
employees who are not at the maximum rate of their salary range will move to
the next step of the range on their anniversary date.
As of January 22, managers are able to begin processing their staff’s merit
increases in WIN. This includes the processing of January 1, 2018 merit
increases so that retroactive adjustments can be made.
40. Thus, if an employee was not at the maximum rate of his or her salary
range as of January 1, 2018, then he or she was eligible to progress to the
next step of the salary range from where he or she left off before the
freeze in salary progression, on his or her anniversary date.
THE GRIEVANCES
41. In a Union Grievance dated August 24, 2017 (GSB #2017-2895), the
Union grieved that the Employer’s salary progression implementation
contravened the 2015 – 2017 Unified Collective Agreement. The Union
alleged:32
The Union grieves that the Employer’s proposed manner of implementing
salary progression starting January 1, 2018 will violate Appendix UN8,
Article UN16 of the collective agreement and any other article, appendix,
law or legal concept that may apply, including but not limited to the case
law surrounding salary progression, and would undermine the salary grids
31 HR Communicates, “Reinstatement of salary progression: OPSEU” dated January 24, 2018, Tab 21.
32 Union Grievance, dated August 24, 2017 (GSB #2017-2895), Tab 22.
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promulgated under UN16, as Employees will not be placed on the wage
grid based on service and proficiency.
42. In a Union Grievance dated February 12, 2018 (GSB #2017-3879), the
Union grieved that the Employer’s salary progression implementation
contravened the Correctional Collective Agreement applicable to
employees “employed by [the] Ministry of Community Safety &
Correctional Services”. The Union alleged:33
The employer is in violation of the Collective Agreement Articles 2, 3, 7, 9,
10, 18, 20, 31, Appendix UN8, Appendix COR38, of the collective
agreement and any other article/legislation deemed fit including any other
act that governs the salary progression freeze of January 1, 2016 –
December 31, 2017; The employers implementation of salary progression
starting January 01, 2018 violates the C.A. Appendix UN8 and Appendix
COR38, including but not limited to the case law surrounding salary
progression, and would undermine the salary grids promulgated under
UN16, and Appendix COR39, as Employees would not be placed on the
wage grid based on service and proficiency. All regular straight time
hours worked during the salary progression freeze should be counted
towards Employees merit increases.
43. The Union has provided seven anonymized “scenarios”.34
2019 COR INTEREST ARBITRATION EPILOGUE
44. After engaging in collective bargaining towards a Collective Agreement,
the parties proceeded to interest arbitration before Arbitrator Kaplan to
decide outstanding matters with respect to the Correctional Bargaining
Unit Collective Agreement.
45. The Parties submitted interest arbitration briefs35 and the Interest
Arbitration hearing occurred on March 30, 2019.
46. On April 1, 2019, Arbitrator Kaplan issued his Award.36
33 Union Grievance, dated February 12, 2018 (GSB #2017-3879), Tab 23.
34 Anonymized Union Scenarios, Tab 24.
35 OPSEU Interest Arbitration Brief, dated March 25, 2019, Tab 25; Employer Interest Arbitration Brief, dated
March 25, 2019, Tab 26.
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[4] As reflected in the ASF, the provisions in the 2015-2017 Unified and
Correctional CAs relating to salary progression are the same. And although the ASF
does not set out the details of Arbitrator Kaplan’s award for the CBU, it is worth noting
that the provisions of the 2018-2021 Unified and Correctional CAs relating to salary
progression are also the same.
[5] There is no dispute about how salary progression usually works under the
relevant Collective Agreements. Each Collective Agreement has a salary schedule that
places a classification on a salary grid. For example, the first classification identified on
the Unified Salary Schedule in the 2015-2017 Unified CA is that of Accident Claims
Supervisor 1 (“ACS 1”). The vertical columns on the salary grid for this classification
provide for two across the board increases. The horizontal columns represent the
salary progression range with a number of steps. The ACS 1 classification has 7 steps
and each step represents a wage increase of 3%. An employee will typically start in a
classification at the first step and will progress to the second step on the employee’s
anniversary date after one year in the position, and each year thereafter will move to the
next step on the employee’s anniversary date until the maximum step is attained. It will
take an employee in the ACS 1 classification 6 years to progress to the maximum step
in the salary progression range. As a general rule and until the maximum step has
been reached, an employee with greater service in a classification will be paid a higher
salary than an employee who has spent less time in that classification. As noted above,
the salary progression steps for each classification are in the salary schedule of each
Collective Agreement. How salary progression works is determined by Employer policy
as contained in the Merit Increases Directive that is referenced in a footnote in
paragraph 4 of the ASF. This policy, of course, is subject to the terms of the Collective
Agreements.
[6] The way salary progression usually works was altered by a salary
progression freeze for the UBU and the CBU during last two years of the 2015-2017
Collective Agreements. The Employer bargained for the salary progression freeze to
36 Arbitrator Kaplan Interest Arbitration Award, dated April 1, 2019, Tab 27.
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help achieve its goal of “net zero” compensation increases for that round of bargaining.
The identical provisions that provided for the salary progression freeze are set out in
paragraph 15 of the ASF for the Unified CA and in paragraph 27 of the ASF for the
Correctional CA. The language in these provisions indicates that salary rates are fixed
as of January 1, 2016, and that no employee was entitled to salary progression for 2016
and 2017. The same applied to employees who were hired or appointed into bargaining
unit positions during the three year term of the Unified and Correctional CAs. For
example, employees who were at step 2 of the salary progression range for their
classification before January 1, 2016, did not move to step 3 on their anniversary date in
2016 and they did not move to step 4 on their anniversary date in 2017. As well, an
employee hired at step 1 of a classification during the term of the relevant 2015-2017
Collective Agreement remained at that step for the three year term of the Collective
Agreement. These examples indicate the financial impact on employees of the salary
progression freeze for those who were not at the maximum step of the salary
progression range.
[7] The salary progression freeze ended with the expiry of the 2015-2017 Unified
and Correctional CAs. The UBU members ratified an extension agreement on June 22,
2017, well before the then current Unified CA expired. The salary progression freeze
was not rolled over into the extension agreement. Outstanding matters were taken to
interest arbitration for the CBU. The Union raised the subject of salary progression
before Arbitrator Kaplan, but he elected not to address the issue. A number of across
the board increases were added to the salary grid in each Collective Agreement and a
salary progression step was added. The Union was successful in securing financial
gains for its members through the extension agreements. It is noteworthy that the
extension agreements did not alter the basic salary grid structure under the 2018-2021
Unified and Correctional CAs. And there were no provisions added to these Collective
Agreements which specifically addressed how salary progression would be resumed
once the salary progression freeze had ended.
[8] The Employer advised bargaining unit employees in January of 2018 that the
salary progression freeze had ended on December 31, 2017, and that eligible
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employees would move to the next step of the salary progression range on their
anniversary date if they were not already at the maximum rate for their classification.
The Employer maintained in this proceeding that this way of resuming salary
progression was consistent with its obligations under the Unified and Correctional CAs.
An example of the practical effect of the Employer’s approach is that an employee with
a December anniversary date who was at step 2 of the salary grid prior to the start of
the salary progression freeze on January 1, 2016, would move to step 3 of the salary
grid in December of 2018.
[9] The Union’s perspective on how salary progression should have resumed
under the Unified and Correctional CAs after the salary progression freeze ended is
significantly different from the Employer’s position. It took the position that once the
salary progression freeze ended, an employee should have moved immediately to the
step on the salary grid that the employee would have moved to but for the freeze, and
then continue to progress thereafter in the normal course. Therefore, an employee at
step 2 of the salary grid prior to the salary freeze, who missed moving to steps 3 and 4
on the salary grid because of the two year salary progression freeze, should have
moved immediately to step 4 of the wage grid on January 1, 2018, since the employee
would have been at that step if there had not been a freeze. After that adjustment, the
Union maintained that the same employee should move to step 5 of the salary grid on
his or her anniversary date in 2018. Therefore, taking this example, the Union’s view is
that the Employer was required to move an employee three steps in total on the salary
grid in 2018 if the employee was at least three steps away from the maximum step of
the salary grid.
[10] The Union made essentially two submissions to support its position that the
way the Employer handled salary progression after the lifting of the salary progression
freeze was inconsistent with its obligations under the Unified and Correctional CAs.
These submissions were based on the nature of the salary progression structure as set
out in the salary schedule in each Collective Agreement. Union counsel emphasized
that the key features of that structure are the regular movement to higher steps and a
higher salary on an employee’s anniversary date based on length of service in a
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classification. Counsel’s first submission was that the salary progression freeze had an
end date of December 31, 2017, and once the freeze was lifted the Employer was
obliged to recognize that employees continued to work in their classifications during the
two years of the salary progression freeze and move them two steps on the salary grid
on January 1, 2018, consistent with their length of time in the classification and the
concept of salary progression. Counsel noted that the Employer obtained salary
savings during the two year salary progression freeze and argued that the Employer did
not bargain for language that would give it a continuing benefit beyond the two year
salary progression freeze. Counsel noted that under the Employer’s approach, an
employee who missed two steps during the freeze would continue to lag behind and feel
the impact of the salary progression freeze until they reached the maximum step of the
salary grid. Union counsel argued that, in contrast to the Employer’s approach, the
Union’s position meant that the effects of the salary progression freeze were limited as
much as possible. Union counsel also submitted that the Union’s position was more
consistent with the plain meaning of the language in the Unified and Correctional CAs.
[11] The Union also took the position that the way the Employer resumed salary
progression once the salary progression freeze was over disrupted the usual operation
of the salary progression system and led to unfair and absurd results. Union counsel
noted that the impact of the salary progression freeze varied because employees had
different anniversary dates. Counsel referred to examples of that impact and also to a
Union created document setting out salary progression freeze scenarios to illustrate
how some employees were affected by the Employer’s method of resuming salary
progression. Without referring to the details of the examples given, the point of the
exercise was to illustrate that senior employees were earning the same or less than
employees with less service in the same classification for a certain amount of time.
Union counsel noted that it was unfair that an employee with a December anniversary
date coming out of the two year freeze had to wait almost a year to get the next merit
increase. It was noted that an employee hired in March of 2016 would get a merit
increase in March of 2018 by moving to step 2 of the salary progression range, while a
more senior employee hired in December of 2015 would not move to step 2 until
December of 2018. Counsel argued that the unfair and absurd results arising from the
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Employer’s way of resuming salary progression did not favour the Employer’s
interpretation of the relevant language in the Collective Agreements, but did support the
Union’s interpretation of that language because its interpretation did not lead to these
unfair and absurd results, and it recognized the length of service that employees had in
their classifications.
[12] In the last part of her submissions, Union counsel indicated that there were
at least thirteen documents in the Book of Documents that I should not consider.
Counsel submitted that the relevant language in the Unified and Correctional CAs was
clear and unambiguous, and that the documents the Employer wished to rely on were
not relevant and not useful for contextual purposes. Without detailing the content of
these documents, I simply note that they were different types of Union documents, such
as an OPSEU Policy Manual, internal Union communications to members on bargaining
issues, interest arbitration briefs and a transcript of a Town Hall event which recorded
exchanges between Union representatives and members on the issue of salary
progression. Referring to each of the challenged documents, Union counsel argued
that they would not be of assistance in resolving the interpretation issue that was at the
heart of the dispute before me.
[13] Union counsel relied on the following decisions in support of the Union’s
position: Re Sun Country Regional Health Authority and HSAS (Rogers) (2015), 255
L.A.C. (4th) 254 (Ponak); OPSEU (Hymers et al.) and Ontario (Ministry of Natural
Resources), 2003 CanLII 52916 (ON GSB) (Kirkwood); Re DHL Express (Canada) Ltd.
and CAW-Canada, Local 4215 (2004), 124 L.A.C. (4th) 271 (Hamilton); Ontario Power
Generation and Society of Energy Professionals, 2015 CanLII 32020 (ON LA)
(Surdykowski); Re Ontario Power Generation Inc. and Society of Energy Professionals
(Sloan) (2017), 283 L.A.C. (4th) 302 (Stout); Re Cancoil Thermal Corp. and UFCW,
Local 175 (2017), 284 L.A.C. (4th) 76 (Gee); Tung-Sol of Canada Ltd. and United
Electrical, Radio and Machine Workers of America, Local 512 (1964), 15 L.A.C. 161
(Reville); OPSEU (Gagne et al.) and Ontario (Liquor Control Board of Ontario), 2007
CanLII 30447 (ON GSB) (Dissanayake); Re Northern Telecom Canada Ltd. and United
Automobile Workers, Local 1525 (1983), L.A.C. (3d) 224 (M. Picher); Re Brant County
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Health Unit v. O.N.A., Local 007, 1997 CarswellOnt 7255 (Haefling); Re AUPE and
Alberta Health Services (Pess) (2017), 284 L.A.C. (4th) 166 (McFetridge); Kingston
(City) Re Rideaucrest Home for the Aged v. O.NA., 2004 CarswellOnt 3617 (Nairn);
Assn. of Law Officers of the Crown v. Ontario (Management Board of Cabinet) (Salaries
Grievance), [2000] O.L.A.A. No. 790 (Kaplan); Re N.S.T.U. and Nova Scotia (Minister of
Education and Culture) (1999), 79 L.A.C. (4th) 1 (Christie); and, N.S.T.U. v. Nova Scotia
(Minister of Education & Culture), 2000 NSCA 66.
[14] Employer counsel submitted that there should be no dispute about the
meaning and effect of a salary progression freeze. He noted that no employee was
entitled to salary progression from January 1, 2016 to December 31, 2017, and that
salary rates were fixed as of January 1, 2016. Counsel provided dictionary definitions
for the words “fixed” and “progression”. Counsel submitted that once the salary
progression freeze ended, the usual process of salary progression was to be resumed,
unless the parties agreed otherwise. Counsel submitted that the usual process of
salary progression provided for in the Unified and Correctional CAs consisted of an
annual movement to the next step of the salary progression range on an employee’s
anniversary date.
[15] Counsel submitted that there was no language in the Unified and
Correctional CAs to support the contention that the parties had agreed to a different
salary progression system. He argued that it was the Union’s position that provided for
absurd and unfair results that could not be justified by any contractual language or by a
valid labour relations rationale. Counsel noted that the movement of three steps by
eligible employees on the salary grid in 2018, with each step representing a 3%
increase, would amount to an additional cost to the Employer of $30 million. Counsel
argued that there was simply no language in the Unified and Correctional CAs that
would allow employees who received no merit increases because of the salary
progression freeze to immediately recover their missed steps on the salary grid once
the salary progression freeze had ended. He also noted the absence of any language
to support salary progression by moving more than one step on the salary grid and at a
time different from an employee’s anniversary date. Counsel submitted that arbitrators
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have consistently held that monetary benefits cannot be inferred, but must be derived
from clear language in the collective agreement. Counsel argued that there was a
complete absence of any language in the relevant Collective Agreements that would
support the salary progression claim that the Union was seeking for its members in the
instant case.
[16] The Employer conceded that there was some disruption to the salary
progression scheme with a two year salary progression freeze and that there would be
residual effects after the freeze. However, counsel submitted such a disruption and the
residual effects were inherent in a salary progression freeze and did not give any
support to the Union’s interpretation of the relevant contractual provisions.
[17] Employer counsel spent some time reviewing the documents which the
Union had argued were either not helpful or not relevant. Employer counsel argued that
a few of the significant documents illustrated that the communication from the Union to
its members about how salary progression would resume after the salary progression
freeze ended is consistent with the Employer’s position. Counsel argued that these
documents were relevant and provided a useful contextual framework for determining
the intention of the parties on the issue of salary progression.
[18] In support of the Employer’s position, Employer counsel referred me to the
following decisions: Re Ontario Power Generation and Society of Energy Professionals,
2012 CarswellOnt 16996 (Surdykowski); OPSEU (White et al.) and Ministry of
Community Safety and Correctional Services (2019), GSB Nos. 2015-3083 et al.
(Petryshen); 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 Nos. 2009-1293 et al. (Abramsky); Re Compass Minerals Canada Corp. and
Unifor, Local 37-0 (2017), 284 L.A.C. 4th 54 (Surdykowski); AMAPCEO and Ministry of
Government Services (2014), GSB No. 2013-2311 (Herlich); Re Prince Edward County
Board of Education and Health, Office and Professional Employees, Local 175, 1996
CarswellOnt 6464 (Starkman); Re City (Toronto) and CUPE, Local 79, 1998
CarswellOnt 7519 (Davie); Re Air Canada and Air Canada Pilots Assn., 2012
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CarswellOnt 4390 (Burkett); Re Waterloo Region Record and Unifor, Local 87-M
(Davis), 2014 CarswellOnt 16763 (Hayes), Re Ontario (Ministry of Labour) and OPSEU
(Anthony), 2005 CarswellOnt 10941 (Abramsky); and, N.S.T.U. v. Nova Scotia (Minister
of Education & Culture) (2000), 184 N.S.R. (2d) 110 (NSSC).
[19] After reviewing the facts and considering the submissions of counsel, I find
that the Employer’s position on the Union grievances has considerable merit. I agree
with Union counsel that the terms of the 2018-2021 Unified and Correctional CAs
relating to salary progression are clear and unambiguous. I therefore found it
unnecessary to rely on the documents objected to by the Union in reaching my
conclusions. I took this approach recognizing that these documents might very well
provide a relevant and contextual framework for analyzing this bargaining relationship
and the issue in dispute in this case. However, to the extent that grievances can be
addressed without resort to extrinsic evidence, I believe the best approach is to rely only
on the relevant language in the Collective Agreement, which is what I have done in this
case.
[20] The different positions taken by the Employer and the Union reflect different
views of what a salary progression freeze is and its consequences, as well as different
views about how salary progression is structured under the Unified and Correctional
CAs. The Union’s position reflects a view that the loss of moving two steps on the
salary grid during 2016 and 2017 can be recovered immediately once the salary
progression freeze ended and that this is possible under the salary progression system
under the Unified and Correctional CAs. The Union’s position is inconsistent with the
concept of the salary progression freeze that was in effect in 2016 and 2017, and the
salary progression system adopted by the parties in the relevant Collective Agreements.
The salary progression freeze for an employee who was not at the maximum step of the
salary range resulted in no movement along the salary grid on the employee’s
anniversary date for two years. The employee’s salary progression therefore was
suspended for two years and the employee’s service in his or her classification for those
two years was not recognized in the usual way for salary progression purposes. Once
the salary progression suspension came to an end, the most probable result in line with
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the Employer policy on salary progression and the language of the relevant Collective
Agreements is that salary progression would resume in the usual way from an
employee’s current step on the salary grid. In my view, a finding in favour of the Union’s
position would have the effect, at least in part, of negating the purpose of the two year
salary progression freeze. The fact that an employee affected by the salary progression
freeze would experience a lag in moving forward on the salary grid until the employee
reached the maximum step of the salary progression range is the inevitable result of a
salary progression freeze.
[21] The parties to the Unified CA agreed to the monetary benefits that would be
included in the extension agreement. Arbitrator Kaplan determined what the monetary
benefits would be for the Correctional CA. Although Union counsel made a valiant effort
to convince me otherwise, there is no language in the relevant 2018-2021 Collective
Agreements on salary progression that would support the Union’s position in the instant
case. As arbitrator Surdykowski noted in Re Ontario Power Generation and Society of
Energy Professionals, supra, the words that are absent from the parties’ written
agreement can be significant. There is no language in the Unified and Correctional CAs
to indicate that the parties intended that employees would recover any salary
progression steps suspended during the salary progression freeze immediately after the
freeze ended. And there is no language in these Collective Agreements to indicate that
the parties intended to alter the salary progression system which provided for the
movement of one step annually on the salary grid on an employee’s anniversary date to
a different salary progression system. I agree with the arbitral consensus that monetary
benefits are not to be inferred or implied, and must be supported by clear language in
the collective agreement. There is no clear language in the Unified and Correctional
CAs to provide that an employee would receive a 6% salary increase on January 1,
2018, because the employee’s movement on the salary grid had been suspended for
two years due to the salary progression freeze.
[22] Finally, I agree with Employer counsel’s submission that any unfairness or
absurd results relied on by the Union in support of its position were inherent in a salary
progression freeze and a salary progression system where movement to the next step
on the salary grid occurs on an employee’s anniversary date. The parties were in a
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position to anticipate what the results of a salary progression freeze would be. The
unfairness and any absurd results referenced by the Union during its submissions do
not assist the Union in advancing its interpretation of the relevant provisions in the
Unified and Correctional CAs.
[23] For the foregoing reason, I find that the Employer did not contravene the
Unified and Correctional 2018-2021 Collective Agreements with respect to the way it
resumed the process of salary progression after the salary progression freeze ended on
December 31, 2017. Therefore, the Union grievances dated August 24, 2017, and
February 12, 2018, are hereby dismissed.
Dated at Toronto, Ontario this 11th day of March, 2020.
“Ken Petryshen”
Ken Petryshen, Arbitrator