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HomeMy WebLinkAboutUnion 09-01-08 I . ,. In the matter of an arbitration between Middlesex Community Living (hereinafter referred to as the employer) And Ontario Public Service Employees Union, Local 144 (hereinafter referred to as the union) Union Policy Grievance- Training Allowance Sole Arbitrator: Gregory J. Brandt Appearances: For the Employer: Ms. Paula M. Rusak, Counsel Anthony Malloy, Executive Director For the Union: Ms. Muneeza Sheikh, Grievance Officer Rhonda Gibson, Local 144 Steward Steve Nield, Staff Representative Hearing: London) Ontario December 19,2008 l' AWARD The grievance, filed on February 1, 2008, alleges that the Employer has violated Article 17.04 of the collective agreement in respect of all of its employees both full and part time. That Article provides as follows: Employees shall be paid in accordance with the Employment Standards Act when attending mandatory training courses. The dispute before me concerns the scope of the obligation set out under that Article) viz, whether (as the union maintains) it obliges the Employer to pay employees attending mandatory training courses at their regular rate of pay established under the collective agreement or, as the employer maintains, employees attending mandatory training sessions are entitled only to the minimum wage prescribed under the Employment Standards Act. Article 17.04 first appeared in the collective agreement for the period from April 1 , 2007- March 31, 2010. Prior to this collective agreement the Employer did not pay anything to employees attending mandatory training courses outside of their normal working hours. Negotiations for the renewal of the agreement commenced in February, 2007 and following a lengthy strike and mediation, a Memorandum of Settlement was signed on August 12, 2007 and employees returned to work on August 13, 14 and 15,2007. In addition to providing for certain wage increases and an increase in the mileage allowance a new provision was added to the agreement, viz Article 17.04. On August 31, 2007 the Executive Director, Mr. Malloy, wrote to employees welcoming them hack from the work stoppage and highlighted the changes to the collective agreement. In particular the letter noted that "employees attending mandatory training courses will be paid minimum wage for time spent.') Commencing in October 2007 the "L...- Employer paid employees attending mandatory training courses at the minimum wage rate set out in the Employment Standards Act and, as advised by counsel for the Employer, some 1 08 employees were paid on that basis. As noted, the grievance was not filed until February 1,2008. The Employer takes the position that Article 17.04 is clear in limiting the scope of its obligation to pay employees while on mandatory training sessions to only the minimum wage as set out in the Employment Standards Act. The union takes the position that the reference to the Employment Standards Act should be taken only as confirming that attendance at mandatory training sessions constitutes "workH and, insofar as the Employment Standards Act is silent on the matter of payment for attendance at employer required training sessions, payment for such "work" should be in accordance with the wage schedule set out in Schedule A to the collective agreement. In support of its position the union called as a witness Mr. Steve Nield, a Staff Representative who services OPSEU bargaining units in the Chatham, Sarnia and London area and who took part in the negotiations of the collective agreement in the late stages after the assistance of a mediator was sought. He testified that the subject of payment for attendance at mandatory training courses was discussed and that, insofar as the Employment Standards Act treated attendance at such courses as "work)', the union wanted a provision in the collective agreement that created a "legal obligation" on the employer to pay employees while in attendance at such sessions. He was unable to recall exactly what the Employer responded but in the end, "we got it included in the Memorandum of Settlement." He further testified that at no time during the discussions concerning this issue (which he conceded were brief and may have occurred in a hallway and not at the table with the ') mediator) was there any reference made by the employer that would suggest that payment would be at minimum wage. The union submitted that attendance at mandatory training sessions as required by the employer constitutes "work') under the Employment Standards Act and that, as such, employees should be paid at the same rate as they are paid when performing their regular)) worlC duties. In that regard reference was made to s. 1 (1) of the Employment Standards Act defining "employee)' as including a "person who receives training from a person who is an employer" and to Ontario Regulation 285/01 under the Employment Standards Act under which, in s. 6(1) it is provided that "work shall be deemed to be performed by an employee of an employer where the work is permitted or suffered to be done by the employer)'. It is argued that required attendance at training sessions at the instance of the Employer constitutes work that is "permitted or suffered to be done" by the Employer. The union further relied on Calgary (City) v. Calgary Police Association [2001] A.G,A.A. No. 10 (Warren), Taggart Service Ltd. and UFCW (1989) 6 L.A.C. (4th) 279 (M. PicheI') and Steinberg Inc. and UFCW (1985),20 L.A.C. (3d) 289 (Foisy) in support of the proposition that required attendance at training sessions constitutes "work" for which employees are entitled to remuneration. It is unnecessary for me to address these arguments as the Employer concedes that mandatory attendance at training sessions does constitute "work" for the purposes of the Employment Standards Act and the collective agreement. The position of the Employer, put simply, is that under Article 17.04 of the collective agreement remuneration for such work is to be at minimum wage (as prescribed by 'f the Employment Standards Act) and not the various wage rates found in Schedule A of the Collective Agreement. I turn first to the evidence of Mr. Nield. I do not consider his evidence to be helpful as an aid to interpreting Article 17.04. of the collective agreement even assuming (although without finding) that such extrinsic evidence is admissible in aid of interpreting ambiguous language. On the question in issue it indicates that the matter of whether or not payment for attendance at mandatory training sessions would be at minimum wage only was not discussed and not specifically proposed by the Employer. Nothing in his evidence suggests that the Employer represented to the union that such would be the case or that employees would not be paid their regular wages while attending mandatory training sessions. On the evidence it appears that, apart from a general reference to the Employment Standards Act, there was no specific discussion of the question as to the rate at which employees (who had hitherto been paid nothing for attendance at mandatory training sessions) would now be paid. In particular, there is nothing in his evidence that would indicate that the reference to the Employment Standards Act was, as the union submits, only for the limited purpose of establishing a legal obligation to pay for such attendance and that it was not intended to fix the rate of remuneration at the Employment Standards Act minimum wage level. While that may have been the intention of the union there is nothing in the evidence of Mr. Nield that would suggest that this was a part of the bargain reached by the parties. Indeed, if it is the case that the Employment Standards Act itself defines "work)' as including required attendance at training courses, there would be no need to bargain to have such an obligation included in the collective agreement as an obligation to pay for such attendance s/ would exist separate and apart from the collective agreement. That would suggest that the reference in Article 17.04 to the Employment Standards Act was not for the purpose of establishing an obligation to pay for attendance at mandatory training sessions but rather for the purpose of establishing the rate of remuneration for such attendance, viz, minimum wage. Further support for this conclusion can be found from reading Article 17.04 in the context of the rest of Article 17, Article 17.01 provides that wages are to be paid in accordance with an attached Schedule which differentiates between full and part time "outcome support facilitators" and an "asleep rate of pay", Article 17.03 provides that if Night Asleep staff are required to be awake to attend to the needs of clients they are to be paid the Night Awake rate. There then follows Article 17,04. Except for the limited purpose suggested by the union (and for which I find no support) it is difficult to understand the need for Article 17.04 if employees in attendance at mandatory training sessions are to be paid their regular rate. It is a well established principle of contract interpretation that the parties must be taken to have intended all provisions of the agreement to have some meaning and application - a principle that would be offended if the union position were to be accepted - as Article 17.04 would have no independent application in and ofitse1f, Moreover, on a fair reading of Article 17.04, it states clearly that "employees shall be paid in accordance with the Employment Standards Act when attending mandatory training courses)) (Emphasis added). That is a clear and unambiguous reference to the question of how employees are to be remunerated and not, as the G union submits, a reference solely for the purpose of establishing an obligation to pay - an obligation which the Employer does not dispute, Accordingly, for the reasons set out above, I find that the required level of pay for employees in attendance at mandatory training sessions is, pursuant to Article 17.04, is at the minimum wage level as prescribed under the Employment Standards Act. In the result the grievance is denied. Dated at LONDON, Ontario this 2, day of J-P,,^-,--~ \ ,2009. 1rt "- ~ ~. Gregory J. Brandt, Sole Arbitrator