Loading...
HomeMy WebLinkAboutUnion 20-12-11IN THE MATTER OF AN ARBITRATION BETWEEN: COLLEGE EMPLOYER COUNCIL ("Employer") and ONTARIO PUBLIC SERVICE EMPLOYEES UNION ("Union") AND IN RESPECT OF GRIEVANCES AT VARIOUS COLLEGES Stephen Raymond Arbitrator Appearances for the Employer• Wallace Kenny Counsel Peter McKeracher Cathy Viviano Reema Uppal Trish Appleyard Appearances for the Union: Tim Hannigan Counsel Pat Honsberger Janice Hagan Bob Holder Mike McKeown A hearing was held via Zoom on November 27, 2020. PWy TAM I was appointed as an arbitrator to determine the grievances arising at a number of Ontario Colleges. The issue raised by the grievances is whether employees of the Colleges, who are members of the support staff bargaining unit, may have paid family leave in certain circumstances. There is no issue as to my jurisdiction. THE COLLECTIVE AGREEMENT The dispute arises in respect of a new provision ("the new provision") in the support staff collective agreement that was negotiated in July 2017. The collective agreement has a term of September 1, 2018 to August 31, 2022. Article 8.1.9.4 is the new provision: 8.1.9.4 Use of STD Credits for Family Leave If a full-time employee is absent from work for the purpose of caring for a member(s) of their immediate family, the employee may apply for leave under Article 12.2. Days withdrawn from the employee's sick leave credits for this purpose will not be counted towards the elimination period for LTD. The dispute between the parties is whether employees can only use their 100% days ("100% days") which accumulate in Article 8.1.9.1 for the purposes of family leave pursuant to Article 8.1.9.4 or if they can also use their 75% days ("75% days) which are provided for in Article 8.1.9.2 for the purpose of family leave pursuant to Article 8.1.9.4. Article 8.1.9.1 and Article 8.1.9.2 are as follows: 21 8.1.9 Short Term Disability 8.1.9.1 Accumulation - Full Pay During the term of this Agreement, the Colleges will continue the ShortTerm Disability Income Plan presently in effect, to provide the first ten (10) days at full pay in any one (1) plan year (which begins on September 1 of each year), the details of which are published in the Group Benefit Program booklet, as amended from time to time by the Joint Insurance Committee (JIC). Employees in their first year of employment will be eligible for benefits under this Plan from their first day of service with the College and will have their ten (10) days entitlement pro -rated in proportion to the amount of the year that they work. In addition, unused days payable at one hundred per cent (100%) in any plan year can be carried forward to provide additional days at one hundred per cent (100%) in future years. Effective September 1, 2000, unused days can only be carried forward to a maximum accumulation of one hundred and thirty (130) days (which includes the initial plan year entitlement plus any "banked" unused days) and may only be used for the purpose of this Article. Upon retirement, layoff or termination of employment, unused days standing in the name of the employee shall be cancelled and shall be of no effect. 8.1.9.2 Duration of Coverage - Partial Pay For the duration of coverage the Plan shall provide benefits of seventy-five per cent (75%) of regular earnings for total coverage under the Short Term Disability Income Plan of one hundred and thirty (130) days. An adjustment will be made in a future pay period, when the College's reporting procedures result in an employee receiving full pay for a portion of the period that the employee was entitled to receive seventy- five per cent (75%) of regular earnings. THE EVIDENCE The parties did not call any evidence. They did provide me with an Agreed Statement of Facts (the "ASF") in which they set out the bargaining history on Article 8.1.9.4. The ASF is only relevant to an alternative argument of the Employer that if the collective agreement is not clear, I should rely on the bargaining history to assist me in interpreting an ambiguity in the collective agreement. The ASF reads as follows: 31 1. In July 2017 the parties met to explore the possibility of negotiating an extension to the collective agreement covering the full time support staff employees at the 24 colleges. 2. After some initial discussions on July 26, 2017 the Council tabled a wage proposal with the Union at approximately 1030 am. (ex 1) 3. When the parties met later on July 26 a number of additional issues were raised by the Union. 4. Relevant to this case, Ron Elliot raised Bill 148 and the 2 paid family leave days in the draft legislation. He indicated the support staff wanted 5 days paid for family leave like what the Academics (CART) had in their collective agreement. 5. The Union proposed language adjusting Article 12.2 to the Council at 3:45 pm on July 26. (ex 2) 6. At 4:10 pm on July 26 the Council responded with language on article 12.2 and 8.1.9.4 that they had been working on which was like the language in the Academic collective agreement which dealt with the issue.(ex 3) 7. Other items were exchanged between the parties not related to this issue. At 9:45 on July 27 the Council provided somewhat modified language on changes to Article 12.2 and 8.1.9.4 (ex 4). 8. This issue was discussed again at around 150 pm on July 27 between Rob Little, Peter McKeracher, Ron Elliot and Janice Hagan. The Council advised the Union that it could either keep the status quo language in the collective agreement or it could take the language that had been offered in Exhibit 4. 9. At 3 pm on July 27 Ron Elliot and Janice Hagan came into the Council's caucus room and indicated the union would accept the language in Exhibit 4. 10. That language was incorporated into the new extension agreement. 11. The practice under the Academic Collective Agreement is that each year employees can elect to use up to 5 of their banked sick leave credit days (100% regular pay) for family illness. They do not get to use the residual sick leave entitlement which is available after their sick leave credits are exhausted. The 75% residual entitlement allows bridging to LTD. 12.At no time during the negotiations was there any discussion between the parties of treating the support staff differently then the CAAT employees. THE ARGUMENTS The Union argued first. It asserted that employees may use 100% days and 75% days for paid family leave. Counsel for the Union took me through the ASF and its exhibits. He argued that had the Employer accepted one of the Union's proposals that the language of the collective agreement would have been clear and employees would only be entitled to use 100% days for family leave. That proposal was not accepted by the Employer. Instead, the Employer proposed "take it or leave it" language from its a collective agreement with academic staff ("the academic collective agreement"). The Union chose to "take it". The effect of transporting the language for the academic collective agreement into this collective agreement is that the limit to the use of 100% days only was lost, and on a clear reading of the collective agreement, 75% days could also be used. The language that ended up in the collective agreement is less restrictive than what the Union itself proposed. Counsel asserted that this is the language that got ratified by the parties, it is what is in the collective agreement, and that its members should be permitted to use 75% days in the event that the 100% days are exhausted. Counsel specifically relied on Article 12.2.2 through Article 12.2.5 of the collective agreement which state: 12.2.2 Family Leave In each year, the College shall grant to each employee up to five days of leave to care for members of the employee's immediate family when they are ill. 12.2.3 Family Leave Eligibility For the purpose of 12.2.2, an employee's immediate family shall mean the employee's spouse (or common-law spouse residing with the employee), children (including children of legal or common-law spouse), and parents (including step-parents or foster parents). 12.2.4 Family Leave Unpaid Except as provided in 12.2.5 leave pursuant to 12.2.2 shall be without pay. 12.2.5 Short Term Disability Application The employee may apply for benefits under the Short -Term Disability Plan as described in Article 8 with respect to the day or days of leave taken under 12.2.2. All the terms of Article 8.1.9, Short -Term Disability Plan, shall apply to the period of leave as if such period was an illness of the employee. Counsel argued that since in Article 12.2.5 family leave is to be treated the same "as if such period was an illness of the employee", it is clear that employees should have access to both 100% days and 75% days just as they would if they were ill. 51 Counsel demonstrated the unfairness of the Employer's position. Suppose, he said, that there are two employees. Both employees have ten 100% days in their sick leave banks. Both have an illness in excess of ten days and a need for family leave of at least five days during the year. The first employee has a need for family leave prior to getting ill. That employee would be eligible to take the maximum family leave of five days at 100% pay and then when ill would have five remaining 100% days prior to using 75% days. The second employee gets ill prior to having a need for family leave. That employee would have used up the 100% days during the illness and would not receive any pay during family leave since there is no access to the 75% days. Counsel argued that to limit the entitlement to 100% days only, I would have to read into the collective agreement a restriction that is not present. Counsel also stated that the academic collective agreement has many references to the phrase "sick leave credits". In the collective agreement before me, it only appears once. It appears in the new provision. It may well be that in that other collective agreement there is a clear distinction between 100% days that are "sick leave credits" and 75% days that are not "sick leave credits". That distinction does not exist in this collective agreement. Finally, counsel compared and contrasted this collective agreement and the academic collective agreement. He stated that there are different entitlements in the two collective agreements in that academic staff are eligible for twenty 100% days, not ten and that there appears to be no limit to the carry forward of those days from one year to the next. In this collective agreement, the carry forward limit is one hundred ar.d thirty days. Counsel relied on a few cases but accepted that this matter turns on an interpretation of this specific collective agreement and the particular words that are used. Counsel for the Employer asserted that the collective agreement is clear that the entitlement is only that 100% days may be used for family leave, not 75% days. If the collective agreement is not clear, he relied on the ASF. He took the position that the provision that is ambiguous, and that would allow me to rely on bargaining history is in Article 12.2.5. That Article provides that the Short Term Disability Plan applies to the family leave request "as if such period was an illness of the employee". Counsel reviewed the ASF. Counsel argued that I should not accept the Union's assertion that they achieved more in bargaining than the Union asked for. The Union's position would result in a "got ya" moment and that is neither what was negotiated or an appropriate approach to collective bargaining. It is clear that the mutual intention of the parties was to only permit employees to use 100% days for a paid family leave. He drew a distinction between the 100% days that accumulate and the 75% days that do not. The 100% days are a benefit that an employee may carry forward. The 75% days are not carried forward. He referenced that the title of the new provision makes it clear what the parties were referring to. I repeat the new provision here: 8.1.9.4 Use of STD Credits for Family Leave If a full-time employee is absent from work for the purpose of caring for a member(s) of their immediate family, the employee may apply for leave under Article 12.2. Days withdrawn from the employee's sick leave credits for this purpose will not be counted towards the elimination period for LTD. 71 He stated that the only way to interpret Article 8.1.9.4 is that an employee's use of credits was to be in the same manner as they are used in the academic collective agreement. He acknowledged that the timing of the use of credits between two employees as set out by the Union may create an unfortunate result but nevertheless it is what these parties agreed to. It is also what the academic employees represented by the same Union have. DECISION The question is in respect of my interpretation of Article 8.1.9.4. It is unfortunate that the heading of the Article uses the phrase "STD credits" and the Article itself uses the phrase "sick leave credits". However, in interpreting this collective agreement, I must conclude that both STD credits and sick leave credits refer to the 100% days that employees receive in Article 8.1.9.1 and not to the 75% days that employees receive in Article 8.1.9.2. Articles 8.1.9.1 and 8.1.9.2 are quite different. Article 8.1.9.1 creates, as its title suggests (Accumulation — Full Pay), an accumulation of 100% days that an employee may use to cover a short-term disability. An employee earns ten days each year. Any unused days may be carried forward from one year to the next with a maximum accumulation of one hundred and thirty days. Although the words are not specifically used, this Article creates a sick leave bank from which the employee may make withdrawals. ME Article 8.1.9.2 creates, as its title suggests (Duration of Coverage — Partial Pay), a partial pay plan of 75% days. Those days are used during the short-term disability period (which is a maximum of one hundred and thirty days) for any duration remaining after all 100% days have been used. There is no earning of 75% days. There is no carry forward of 75% days. This Article does not create a sick leave bank. It follows that Article 8.1.9.1 creates "credits" and that Article 8.1.9.2 does not Therefore, Article 8.1.9.4 which permits the use of credits for family leave, it is referring only to the credits that an employee may have accumulated in Article 8.1.9.1 While I have determined that the collective agreement may be interpreted without regard to the bargaining history, I do accept that there may indeed be an ambiguity as suggested by the Counsel for the Employer that would permit it to rely on the bargaining history. Had that been necessary, it is clear in reviewing the ASF that the intention of the parties during bargaining was to create a system of credits for support staff employees to access for family leave in a manner similar to the system already in place for academic employees, not a superior system. It would, in other words, be the same result that I have concluded without regard to the ASF. The grievances are dismissed Dated at Toronto, this 11th day of December, 2020. Stephen Raymond El