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Home My WebLink About2016-2772.Gareau et al.20-09-15 DecisionCrown 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# 2016-2772; 2016-2773; 2017-0231; 2019-1978; 2019-2880 UNION# 2017-0582-0006; 2017-0582-0007; 2017-0467-0013; 2019-0582-0026; 2019-0467-0040 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Gareau et al) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Diane L. Gee Arbitrator FOR THE UNION Jane Letton Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Joohyung Lee Treasury Board Secretariat Legal Services Branch Counsel HEARING September 9, 2020 (by videoconference) -2- DECISION [1] This is a decision pursuant to article 22.16.2. [2] Anne Gareau and Jonelle Rochester both worked as Correctional Officers and were at the top of the salary scale prior to becoming totally disabled. They have both been on LTIP benefits since 2008 and 2012 respectively. [3] Article 42.2.1(j) of the 2015-2017 Central Collective Agreement provides, effective January 1, 2015 and thereafter, LTIP benefit payments shall be adjusted by an increase equal to those provided for under Article UN 16. A LOU signed November 23, 2015 provides that, for the Correctional bargaining unit, adjustments would be based on COR 17, not UN 16. An interest arbitration award granted all correctional officers a 1.4% wage increase on January 1, 2017 and a 3% increase as a special adjustment to correctional staff. COR 17 reads in relevant part: COR 17.2 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 classifications are contained in the Salary Schedule attached. [4] Special adjustments are dealt with in COR 39 as follows: Special adjustments shall be as follows: The following are special wage adjustments. These increases will be applied to existing rates following any across the board increases, and a special wage adjustment on the same date will be compounded on the across the board increase. 1. The salary rates for all steps in the Correctional Officer 1, 2, 3 class series will be increased as follows: i. 3% on January 1, 2017 [5] The grievors received a 1.4% increase but did not receive the 3% special adjustment. [6] The 2018-2021 Corrections Collective Agreement (the first stand-alone Corrections Agreement) maintained the language of article 42.2.1(j) except to make referenced to COR 17 and not UN 16. An interest arbitration award granted Correction Officers an ATB and a special adjustment of 1.75%. COR 17 in the 2018-2021 Corrections Collective Agreement reads: -3- COR17.1 All salary rates to be increased across the board as follows: January 1, 2018 – 1.5% January 1, 2019 – 1% July 1, 2019 – 1% January 1, 2020 – 1% July 1, 2020 – 1% January 1, 2021 – 1% July 1, 2021 – 1% The salary rates in effect are contained in the Salary Schedule attached. [7] Special Wage Adjustments are dealt with in COR 39 which provides in relevant part as follows: Special adjustments shall be as follows: The following are special wage adjustments. These increases will be applied to existing rates following any across the board increases, and a special wage adjustment on the same date will be compounded on the across the board increase. 2. The salary rates for all steps in the Correctional Officer 1, 2, 3 class series will be increased as follows: i. 1.75 % on January 1, 2018 ii. 1.75% on January 1, 2019 iii. 1.75% on January 1, 2020 iv. 1.75% on January 1, 2021 [8] The grievors received an adjustment equivalent to the ATB provided for in COR 17 but did not receive the 1.75% special wage adjustment. [9] Correctional officers who are on approved paid leaves of absences such as pregnancy/parental leave and full-time union leave receive ATB increases as well as increases equivalent to special adjustments. [10] The Union argues the Employer is in violation of the Collective Agreements and section 5 of the Ontario Human Rights Code by not adjusting the grievors’ LTIP benefits in keeping with the two special wage adjustments referred to above. [11] The Union submits the language of the Collective Agreements is clear that LTIP benefits are to be increased by special wage adjustments; it is argued that COR 17 makes reference to the salary schedules and the salary schedules are adjusted by special wage adjustments. Further, it is argued that the grievors are COs and their LTIP benefits are based on that status; it would be contrary to the Collective Agreement to drop them out of that classification for the purposes of special wage adjustments. In respect of the argument that the failure to grant the -4- grievors the special wage adjustments is a violation of the Human Rights Code the Union submits they are being treated differently than those in comparator groups such as those on pregnancy/parental and union leave. [12] The Employer disputes the language of the Collective Agreement requires LTIP benefits to be adjusted in keeping with special wage adjustments and cites the statutory interpretation principle that entitlement to a monetary benefit must be derived from clear language and cannot be inferred or implied. Further the Employer points out that LTIP benefits do not track the current wage schedules but rather depend on when and how long someone has been on LTIP. The two grievors in this case would not receive the same LTIP benefits notwithstanding they were both at the top of the same classification when they left work. Further, the other groups referred to by the Union that receive special wage adjustments are not comparable for the purposes of human rights analysis as they are leaves granted for different purposes. [13] It is my determination that the language of the Collective Agreements in issue requires adjustments to LTIP benefit payments by an increase equal to those provided for under Article COR 17. COR 17 in both Collective Agreements did not refer to special wage adjustments. Special wage adjustments are dealt with in both Collective Agreements in COR 39. I further find, for the reasons stated by the Employer in argument, the salary schedules are not a measure of LTIP payments. The Collective Agreement language does not require the Employer to adjust LTIP payments in an amount equal to the two special wage adjustments that are at issue in this case. [14] I further find not increasing LTIP benefits in an amount equal to the special wage adjustment is not a violation of the Human Rights Code. It is not prohibited discrimination to distinguish for the purposes of compensation between employees who are working and those who are not. With respect to granting of increases equivalent to special wage increases to those on pregnancy/parental and union leave, the purposes of those plans are completely different than the purposes of LTIP. As said by the Supreme Court of Canada in Battlefords and District Co-operative Ltd. v Gibbs, [1996] 3 S.C.R. 566 it is not helpful to compare benefits allotted to employees for different purposes and it is understandable that insurance benefits for disparate purposes will differ. [15] For the foregoing reasons, these grievances are dismissed. Dated at Toronto, Ontario this 15th day of September, 2020. “Diane L. Gee” ______________________ Diane L. Gee, Arbitrator