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HomeMy WebLinkAboutUNION-1993-29-10 ,1.. r.-.....~ r--',r,\ ,-'-- ,.. 1"'!,,;r-'C,~-:..-.- ~,r~ 1 :) (!j j I~ H.j~;' ~ ;r,:-i 1'; , t I ,:; :,,j~-_..i ~ ~ ; ,'~, ::i i i H t ~.:I';! !I " '" ~ 11 ~ ! ,r: !"'" 0 ~J i n i ~ fj 8 111n~ id J I ~ ,i-_: u ,.J:J1J .' ~. j I j.:n OJ J LJ.~::r-=._:,~, ,_, . , j5j:j ......:::.....-.; '-/~LJ LX '-..-':L:./' -~------ IN THE MATTER OF AN ARBITRATION------------ BETWEEN: ASSOCIATION OF ALliED HEALTH PROFESSIONALS: ONTARIO, union, and THE EASTERN ONTARIO HEALTH UNIT, employer Union Policy Grievance Arbitrator: Thomas M. Eberlee For the Union: Sue McCulloch, Labour Relations Officer Leslee Brown, Bargaining Unit Representative For the Employer: Thomas A. Stefanik, Counsel Roy Besner, Director, Corporate Services Hearing held at Cornwall, Ontario on October 18, 1993 (Office of Arbitration File No. Al93036790) AWARD This is a union policy grievance arising in connection with the employer's application of certain provisions of the new Social Contract Act of Ontario. The Association of Allied Health Professionals: Ontario filed a grievance on September 10, 1993 alleging that the Eastern Ontario Health Unit had "unlawfully reduced the compensation of employees." The Minister of Labour appointed me pursuant to subsection 46 (4) of the Labour Relations Act to arbitrate the matter. A hearing was held in Cornwall on October 18, 1993. The basic facts are not in dispute: The Health Unit, in order to cut costs, and live within a constrained budget, applied the provisions of Section 25 of the Social Contract Act under which an employer is said to be permitted to require employees to take up to 12 days of unpaid leave between June 14, 1993 and March 31, 1994 (and further days thereafter). It is the practice, although not mentioned specifically in the existing collective agreement between the Health Unit and the Association, that employees are paid every two weeks. Hence, a pay period normally covers 10 days of work. Employees were required to take an unpaid day of leave in each of August and September, 1993, and this was intended to continue into October and beyond. The Health Unit, at least at its Cornwall base, holds a regular Wednesday morning meeting with all staff present in the office at the time. Those usually in attendance include members of the Allied Health Professionals bargaining unit, members of other bargaining units plus non-union and management staff. At one of these meetings around the beginning of the application of the unpaid 1 leave "program", the employer asked assembled employees whether, since they would presumably be working 19 rather than 20 days in most months (I say "most" because there are 26 pay periods and presumably a couple of months with three pays), they would prefer to be paid on an equalized, 91/2 and 91/2 basis or on a basis reflecting the actual days worked in each pay period. The employer left the meeting feeling that the consensus of the employees was that people preferred an equalization of their cheques on the 9 1/2/9 1/2 basis. This system was thereupon instituted. The Association objects both to the system and to the way in which the employer went about bringing it in. Leslee Brown, president of the Association of Allied Health Professionals bargaining unit, was not present at the meeting where the employer obtained this purported concensus. She testified that the employer did not consult even unofficially with the bargaining agent itself before instituting the new approach and the union did not authorize it on behalf of the unit. The result is that . persons who have worked 10 days in one pay period now get only 9 1/2 days of pay; they are underpaid for the time worked in that period. In the next one, they are give 9 1/2 days of pay for only 9 days of work. There is no suggestion, of course, that in the final analysis and over the long haul, they are out of pocket as far as remuneration for actual time worked is concerned. But in the union's view, certain principles are at stake. The union is objecting to the employer's implementation of a so-called "fail-safe" program under the Social Contract Act and this objection will apparently be ruled upon by an adjudicator appointed under that statute. The 2 there is nothing in the collective agreement that requires the employer to operate a pay system on an every-two-week basis; in any event, the collective agreement sets out monthly salaries which are to be paid to the members of the bargaining unit and these are the "official" rates of pay; the employer could just as properly pay employees monthly for their actual days worked and this would not be a violation of the agreement; the Social Contract Act does not intend that this kind of difference over something relating directly to the implementation of the unpaid leaves provisions should be referred to arbitration; the review of the implementation of an unpaid leaves of absence program rests with an adjudicator appointed under the Social Contract Act and not with an arbitrator; under Section 33 (2) of that Act, an arbitrator shall not make any decision that an adjudicator is entitled to make vis a vis an unpaid leaves program; in this instance, the program has been, or is being, brought by the union before an adjudicator for review; the propriety of the program also involves the method of paying people and this is the bailiwick of the adjudicator, not mine in this instance. The Association replied on the following basis: the collective agreement's only "official" rate is not the monthly salary set out in Schedule A; equally official is the monthly and hourly breakdown of that annual rate which is also set out in Schedule A; people are paid for the time they actually work - the days and hours they actually put in; they are not simply paid a blanket total sum for a 4 union asserts that this has no relevance to the issues raised here. The employer believes it does. This key question will be canvassed later. The Association argued along the following lines: while the claimed violation of the agreement is technical in nature, it nevertheless involves a principle which is fundamental to industrial relations: an employer cannot unilaterally change the pay structure or any other provision of the collective agreement; the employer has acted unilaterally and in violation of the collective agreement by ignoring article 1.01 which makes the Association the sole and exclusive bargaining agent for the employees in the unit; the employer has in effect bargained directly with employees (some of whom were not even employees in the bargaining unit) to find a "consensus" on the particular question; this has placed the union in a particularly difficult position since, among other things, the Labour Relations Act imposes upon it a "duty of fair representation" and it could be the subject of a complaint by an individual member for an employer action over which it has had no control; there is nothing in the Social Contract Act which permits an employer to amend the collective agreement; it gives the employer only the power to require employees to take unpaid days of leave (and then circumscribes that power via a review and adjudication process). Counsel for the Health Unit argued in essence that if there has been a violation of the collective agreement, which the employer denies, the collective agreement is over-ridden by the Social Contract Act; 3 year; if the latter were the case there would be no provision for deducting money from their pay when they were forced to take time off; it is clearly a violation of the collective agreement when a person works 10 days in one period and is paid for only 91/2; the scope of review by an adjudicator of an unpaid leave program established under Section 27 of the Social Contact Act is limited to the criteria spelled out in Section 27 which do not relate in any way to the issue or issues raised here. In some ways, the first question I have to answer is whether I have any business dealing with this matter at all if, as the employer, suggests, it is part and parcel of the implementation by it of an unpaid leaves "program" under the Social Contract Act. In my opinion, however, I do have jurisdiction here to determine whether or not this matter is covered by the program. My understanding of the part of the Social Contract Act which is relevant to the issues here is roughly as follows: Section 25 empowers an employer to require employees to take unpaid leaves of absence to a maximum of 12 days during each of three periods (roughly the provincial fiscal years) between June 14, 1993 and March 31,1996 if necessary to meet the expenditure reduction target established by the Minister which applies to the employer. (There are certain qualifications relating to specific circumstances spelled out in the section. Section 26 contains more qualifications. These are not relevant to the issues before me). Section 27 - at least that part of it that is relevant here - empowers an 5 employer to "develop a program setting out the manner in which these leaves are to be implemented." It lists five criteria which the employer must observe in developing the program: such as, that nobody will be "adversely affected", that the program will assist the employer in achieving the expenditure reduction target established by the Minister, that it will be "fair and equitable", and so on. None of the above has any bearing in any way upon the method used to pay people for work actually done. Nor does the equalization of pay cheques, as the employer is doing, relate in any sense to the substance of the program itself. The payment of people for work actually done was clearly the practice of the employer in the past; it seems to me to be mandatory under the collective agreement. That payment was normally made very two weeks. It is not at all connected to the program mentioned and somewhat defined in Section 27. Nor does it have anything to do with "the manner in which these leaves are to be implemented. " Under Section 28, the employer has certain responsibilities: for example, it must make a written summary setting out, among other things, "the manner in which the unpaid leaves of absence are to be administered". I do not think that any inference can be drawn from these words that the legislation gives the employer the authority in administering the leaves to proceed to alter the system by which persons will be paid for work actually done during the pay period in which a leave occurred. Sections 29 and 30 make provision for an employee or a bargaining agent to appeal first to the employer for amendment of the program if it does not meet the criteria set out in Section 27. Upon being dissatisfied with the employer's 6 response, an employee or a union may seek a review by "the person or the body designated in the regulations as an adjudicator for that pUrpose". The scope of that review continues to be whether "the program or amended program still does not meet the criteria set out in Section 27." Time limits are included in the sections for the making of the two levels of request for review. Section 31 empowers an adjudicator (not to be confused with a collective agreement arbitrator) to confirm the program if it meets the Section 27 criteria or to amend it so that it does. (As I have indicated earlier, the Association has asked for an adjudicator's review of the program established by the Health Unit, but this has not yet occurred. This is, however, not relevant to the issues here). Under the Social Contract Act, a program goes into effect immediately upon its being posted in accordance with Section 29, notwithstanding that there may be a request for amendment to the employer and an application for a review to an adjudicator. The tenor of the Act is that the program in its originally posted . form and then its altered form, if any, as a result of the reviews and possible amendments, prevails over any provisions of the existing collective agreement covering the same matters. However, Section 33 gives to an employee the power to utilize the grievance or arbitration procedures under his or her existing collective agreement to decide any difference with his or her employer over the "interpretation, application, administration or alleged contravention of the program." However, Section 33 (2) bars an arbitrator or board of arbitration from making any decision that an adjudicator is entitled to make under Section 31 (2) in respect of the substance of the program itself. The wording of 33 (2) suggests to me that if an arbitration board or an arbitrator has not been given some degree of primacy in respect of the making of a determination about what is or is not in its bailiwick, versus what is the business of an adjudicator, at the very least it has an 7 unmistakable and legitimate authority to decide what it can or cannot decide. In this instance, even if by some stretch of the imagination the issues could be seen as falling within the ambit of the program - and I do not think they do - I could still treat them as being differences arising out of the "interpretation, application, administration or alleged contravention" of the program. I repeat that I do not, however, see them as being in any way related to the program. In passing, I cannot help commenting that in respect of the operation of this part of the Social Contract Act, the jurisdiction of the adjudicative machinery is specific and highly circumscribed. It is actually of an "interest" character, determining whether the substance of a program meets the intentions of the Act and ensuring that it does. The program has the effect of altering the substance of the collective agreement. On the other hand, the role given to the grievance/arbitration machinery . of the collective agreement which has been altered by the program is really no different from what it was in pre-Social Contract Act days. The only difference is in the substance of other provisions of the collective agreement it now consists of the contents of the existing collective agreement plus the alterations or changes imposed by the program where it prevails over certain provisions of the existing collective agreement. Somebody representing the employer asserted at the hearing of this matter - I hasten to say that it was not the employer's counsel - that the social contract "supersedes collective bargaining." If this view is held in any employer quarters, it would be wise that it be abandoned forthwith, for it is unsound. One hopes that the cries of outrage from one side of the industrial relations equation have 8 not been taken so seriously by the employer side that the latter really thinks collective bargaining has gone out the window and employers can behave accordingly. The fact is that as far as the issues raised here are concerned, collective bargaining and the non-social contract provisions of the collective agreement are very much alive. I find that the employer, by asking employees how they wished to be paid for time worked, bargained directly with employees, some of whom were perhaps in the unit, some of whom were in other units altogether, and some of whom were apparently management personnel excluded from these units. That act of bargaining was contrary to article 1.01 of the collective agreement wherein the employer recognized the Association of Allied Professionals as being "the sole and exclusive bargaining agent" for all the employees in its unit. The sole and exclusive bargaining agent should have been brought into the picture, not the group that was actually canvassed, in respect of the question about how payments were to be handled. The product of the employer's contravention of the collective agreement - the equalization scheme - cannot stand and the employer must return forthwith to the system of paying persons for the actual days worked during each pay period. I shall remain seized to deal with any problems that may arise in connection with this order. ~ M Thomas M. Eberlee Ottawa, October 29, 1993 9