HomeMy WebLinkAboutUnion 06-03-13
BET WEE N:
SUNDOWNERS DA Y CARE AND RESOURCE CENTRE
the "EMPLOYER'!
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ONTARIO PUBLIC SERVICE EMPLOYEES UNION. LOCAL 143
the "UNION"
SOLE ARBITRATOR:
Richard L. Verity, Q.C,
FOR THE EMPLOYER:
George W. King
McTague Law Firm lLP
Counsel
Leah Hills.
Executive Director
FOR THE UNION:
Richard Blair
Ryder Wright Blair & Holmes
Counsel
Carrie Walker Robitaille
OPSEU Steward
Heather Johnson
OPSEU Member
HEARING:
Tuesday, February 21,2006
Windsor, Ontario
, .
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AWARD
This matter arises from a union policy grievance, dated August 1, 2004, which
involves perm,anent full-time and part-time employees who are on lay-off and who accept
call-in hours of work, The grievance alleges that the employer improperly paid full-time and
part-time employees on lay-off, who had notified the employer in writing that they ,!"ere willing
to accept "call-in hours.of work" and who worked supply shifts as needed on a call-in basis.
The one day hearing proceeded by way of consensual 'arbitration. There was no
dispute as to my jurisdiction to hear and determine the matter.
The issue that separates the parties is the proper interpretation of Article 14.02(e).
Article 14 of the collective agreement is entitled "Lay-offs and Recall". In particular Article
14.02(e) reads:
(e) A full-time or part-time employee who is laid off shall be entitled to call-in hours of work
prior to the supply employees in the supply pool provided they notify the Employer in writing
that they. are willing to work supply shifts. A refusal of a call-in does not constitute a recall
refusal as prescribed in Article 12.07(f).
Otherwise stated, what is the proper rate of pay under article 14.02(e), where full-time
or part-time employees on lay-off accept call-in hours of work?
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, The hearing proceeded by the introduction of an Agreed Statement of Facts followed
by brief oral argument. No oral testimony was called by either party. The Statement of Facts
(Exhibit 3) reads as follows:
1. The Union and the- Employer are parties to a collective agreement commencing April
1, 2003, and expiring March 31, 2006. This is the second collective agreement
between the parties.
2. The Employer's business is, inter alia, the operation of day care centres. The
collective agreement recognizes the Union as the collective bargaining agent for
employees of the employer in the City of Windsor. and the County of Essex, with
certain exceptions.
3. A variety of "classes' of employees are employed by Sundowners. The Collective'
Agreement contains, in Article 2.02, particular definitions of classes of employees:
a} Full Time
b) Part Time
c} Supply
d} Contract
4. During certain periods of the year. Christmas break, March break, and the summer
months, there are different demands for day care services, and a number of "school
based" centres are closed during the b'reaks. As a result, during such periods, there
are reductions in'the staff size and/or "consolidation" of the services into a .smaller
number of centres. Full time and part time employees are laid off in accordance with
the terms of the Collective Agreement; those who remain are redeployed to the
centres which remain open during these periods.
5. At the time of layoff, employees who are laid off are offered the option of accepting
"supply" hours on a call-in, as needed basis. Employees who are willing to accept
such hours are placed on a list and are called, as needed, to perform call-in hours.
Call in hours are necessary to cover a number of exigencies, including but not limited
to vacations, sick leave, and other, unanticipated absences of other employees.
6, The work performed by employees taking "call in" hours is not different in character
than the work performed by employees performing the work during their regular
scheduled hours.
7. During the Christmas break of 2003 . 2004, and during the March break of 2004, an
employee, Heather Johnson (a full-lime ECE), was laid off, and came in to perform
some call-in hours, (having had her name placed on the Jistfor call-in hours) for which
she was paid her regular rate During the summer of 2004, Ms. Jo.hnson was laid off .
again (June 24 - September 7), and agreed for her name to be placed on4he "call in"
supply list. S.he was in fact called in, and for a period of time, was paid at her normal
rate of pay for the first two pay period;;;. Ho.wever, in late July, Ms. Johnson received
a memo dated July 21,2004, which advised her that an "error was made in payroll"
regarding these two pay periods, and that she had been paid at the ECE rate of
$15.45 instead of the "supply ECE rate" of $14.20. She was advised that $77.97
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would be deducted from her pay. She was, thenceforth, paid at the "supply" rate for
call-in hours.
8. At least one other person employed at the time, who subsequently left the employ of
the Employer, Ms. Laura Vavala, was treated In a similar manner to Ms. Johnson
during the summer of 2004,
9. There is no consistent practice year to year regarding this issue. At least three
permanent employees ~ave, in the past, on occasion been paid the "supply" rate for
. call-in hours while on layoff. The Union was not aware of this having happened.
10. The Union filed the 'policy grievance upon becoming aware in the summer of 2004 that
employees on layoff called in for calf-in hours were being paid at the supply rate, The
matter was processed through the grievance procedure and referred to arbitration.
As indicated above, the relevant collective agreement is for the period April 1, 2003
to March 31, 2006. Refer~nce was made to the following provisions of the collective
agreement:
ARTICLE 2 - RECOGNITION
2.02 Definitions of Emplovees:
a) Full time: An employee who regularly works thirty (30) hours per week, or
more,
b) Part time: An employee who regularly works less than thirty (30) hours per
week.
c) Supply: Employees who do not work on a regular schedule, but who are
called in on an as needed basis. .
d) Contract: An employee who is hired on a full-time or part-time basis for more
than one (1) month, but less than six (6) months to replace a regular
full-time or part-time employee on an authorized leave. In the cases
of authorized leave longer than six (6) month, the contract may
reflect that length of time.
2.04 Part-time employees may choose to work extra hours at their home centre on an as
needed basis to replace absent employees, provided they possess the qualifications
to perform the job and provided the hours offered do not conflict with their regular part-
time schedule. Part-time employees will be offered this work in order of seniority prior
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to the work being offered to Supply List employees. Part-time employees will be paid
their applicable hourly rate for this work. Part-time employees will not be considered
full-time employees if they work in excess of thirty (30) hours per week pursuant to the
provisions of this Article.
Part-time employees may also choose to work extra hours at centres other than their
home centre on an as needed basis to replace absent empioyees, provided they
possess the qualifications to perform the job and provIded the hours offered do not
conflict with their regular part-time schedule. Part-time employees will be offered work .
at other centres in order of seniority after it has been offered to part time employees
at the other location but prior to the work being offered to Supply list employ.ees.
Part-time employees will be paid their applicable hourly rate for this work. Part-time
employees will not be considered full-time employees if they work in excess of thirty
(30) hours per week pursuant to the provisions of this Article. In order to be eligible
for work at other centres, Part-time employees must put their names on the Supply
List.
ARTICLE 10 - ARBITRATION
. 10.04 The arbitrator shall not have the jurisdiction to alter or amend any of the provisions of
this Agreement or to substitute any provisions in lieu thereof, nor to give any decision
inconsistent wilh the terms and provisions of this Agreement, or to deal with the terms
and provisions of this Agreement, or to deal wilh any matter not covered by this
Agreement unless aulhorized by statute to do so. The arbitrator, however, in respect
of a grievance involving a penalty shall be entitled to modify such penalty if it is just
and equitable to do so.
ARTICLE 12 - SENIORITY
12.01 Seniority Defined:
(a) Seniority for all permanent fulHime and permanent part-time employees shall
be established based on the date in which the employee last acquired a
permanent position within the bargaining unit.
(b) Seniority for supply employees shall be based on their last date of hire with
the Employer.
12.02 Senioritv list
The Employer shall maintain two seniority lists, one for permanent full-time and
permanent part-time employees and one for supply employees, Each seniority list
shall be in seniority sequence and wiU include employee name, classification, location,
date of hire, and se.niority date. Where two or more employees commenc.e work on
the same day, their names wiU be placed on the seniority list in order based on a draw
of names, conducted in the presence of the President of the Local or his/her
designate, An up to date seniority list shall be senUo the President of the Local (or
designate) and posted on all bulletin boards in September and March of each year.
Seniority lists will be deemed to be correct if not questioned by the employee or the
Union within thirty (30) calendar days of the posting of the seniority list.
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12.04 Seniority for' permanent employees shall accumulate in the following circumstances
only:
(a)
(b)
(c)
(d)
(e)
When at work for the Employer;
When absent from work due to lay-off, sickness, or accident, in which case
seniority will continue to accumulate for twenty-four (24) mpnths;
When on approved leave of absence, in which case seniority will continue to -
accumulate for the first six (6) months of such leave;
When absent on vacation or on holidays; and
When on approved Employment Standards Act leave,
12.07 Loss of Seniority and Termination of Emplovment
Seniority will be lost and employment will be terminated if:
(a) An employee resigns;
(b) An employee is discharged and is not reinstated pursuant to the grievance
procedure and/or arbitration procedure as herein provided;
(c) An employee fails to report for work for three (3) consecutive working days
without notifyIng the Employer and providing a satisfactory reason for such
failure;
(d) An employee is laid off for a period in excess of thirty-six (36) consecutive
months;
(e) If an employee fails to return to work upon the expiration of a leave of
absence, unless during such leave an extension is granted by the Employer;
(f) If an employee has been laid-off and fails to return within five (5) working days
after being recalled by registered mail unless during such period written
permission is received from the Employerto extend the date of return to work;
(g) An employee accepts other employment while on leave of absence without
permission of the Employer;
(h) If a supply employee refuses a call-in for work on that day made prior to 8:30
a.m. for six (6) days within one (1) month, unless a satisfactory reason has
been provided.
A failure to answer a call, or return a call within thirty (30) minutes after it has
been made, will be considered a refusal for the purposes of this Article. '
ARTICLE 14 - LAY-OFFS AND RECALL
14,01 A lay-off shall be defined as a reduction in the workforce as defined in this Agreement
or a reduction in the regular hours of work as set out herein, or in the event that a'
position of consecutive hours becomes a split shift position (or vice-versa).
14.02 Both parties recognize that job security shall increase in proportion to length of
service. Therefore in the event of a lay-off; the folldwing shpll apply:
(a) Probationary employees within the affected classification shall be laid off first
and thereafter supply employees in temporary positions shall be returned 10
the supply pool following which employees within the affected classification
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. will be laid off in the reverse order of seniority, provided that the application
of this article shall be consistent with employees being retained at work
, ' having the necessary ability and qualifications to perform the job required.
(b) an employee who is laid off shall have the right to accept the lay-off or to
bump an employee with less seniority provided they have the necessary
ability and qualifications to perform the work r~quired.
(c) Employees bumped by more senior employees may choose to accept the lay-
off or to bump into a higher or lower rated classification so as to displace an
employee with less seniority provided-they have the necessary ability al)d
qualifications to perform the work required.
(d) An employee who has exercised their seniority and assumes a job at a higher
wage rate shall be enlitled to the higher rate of pay.
(e) A full-time or part-time employee who .ls laid off shall be entitled to call-in
hours of work prior to the supply employees in the supply pool provided they
notify the Employer in writing that they are willing to work supply shifts. A
refusal of a call-in does not constitute a recall refusal as prescribed In Article
12.07(f).
(f) Employees who have been laid off shall be recalled in order of seniority
provided they have the necessary ability and qualifications to perform the
work required. Vacancies within the bargaining unit shall be posted pursuant
to Article 13 prior to the recall of laid off employees.
.......J.;..
ARTICLE 17 - HOURS OF WORK AND SCHEDULING
17.03 Supply employees will be called' in on an as needed basis with the available hours to
be offered to supply employees by seniority, provided continuity of care for the
program is maintained.
ARTICLE 22 - HEALTH AND WELFARE BENEFITS
22.01 The Employerwill pay one hundred per cent (1 00%) of the premium cost for those full-
time employees and their eligible dependants currently receiving benefits provided
under the Equitable Ufe Policy No. 96092. A breakdown of the benefit premium cost
will be given to the Union. .
The Employer will pay seventy-five (75%) of the premium cost for those full-time
employees and their eligible dependents currently receiving benefits provided under
the Manulife Plan No. G0021100. A breakdown of the benefit premium cost will be
given to the Union.
All permanent full time employees will be enrolled in the Manulife Financial Group
Policy Plan No. G0021100 (or its.equivalent.) This plan will be available to employees
who have six (6) months service with the Employer. En:ployees currently in receipt
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of benefits with Equitable, will be grandfathered in the current Equitable Plan, unless
they elect to switch to the Manulife Plan in accordance with Article 22.07 of the
Collective Agreement.
22.02 The benefit carrier maybe changed upon thirty (30) days notice to the Union, provided
equivalent or better coverage is maintained, and the Union shall be giv~n a copy of
any new policy.
22.03 Supply employees replacing employees for absences of six (6) months or longer will
be entitled to be enrolled in the Manulife benefit plan while they remain in a full-time
position.
SCHEDULE "An
Effective April 1 , 2003
ECE
Entrv 1 Year
$15.20 $15.74
$15.77 $16.43
$15.00 $15.55
$13.79 $14.38
$13.97 $14.51
$13.6f) . $14.24
$13.03 $13.59
Resource Teacher
Assistant Supervisor
ECE Supply
Non ECE
Non ECE Supply
Cook
Effective April 1 , 2004" 3% increase to all levels for Resource Teacher, ECE, and ECE
Supply .
2% increase to all levels for Assistant Supervisor, Non ECE,
Non ECE Supply, and Cook
Effective April 1, 2005
3% increase to all levels for Resource Teacher, ECE, and
ECE Supply
2% increase to all levels for Assistant Supervisor, Non ECE,
Non ECE Supply, and Cook
The Employer will provide all active seniority employees who are not ECE or ECE Supply as
of the date of ratification (inclusive of those on sick leave and pregnancy leave) with a one-time
$150.00 signing bonus.
The foregoing is exclusive of Pay Equity.
The entry level is applicable for the first (1S\) year of service.
Supply employees will receive the service rate of the classification they are replacing for
absences of thirty (30) worked days or longer while they remain in the position, except in the
circumstance where they would receive a decrease in pay.
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The arguments of e.ach of the parties can be briefly summarized. The union contends
that permanent fullMtime or part-time employees who are on lay-off and who are called in are
entitled to their regular hourly rate rather than the supply rate, The union argues that
14.02(e) is to be read in conjunction with other provisions of the collective agreement and
Schedule "A", Briefly stated, counsel for the, union, Mr. Blair maintains that an acceptance
of a call-in by a full-time or a part-time employee who is on lay-off does not alter an
employee's status, and, therefore, she or he must be paid the rate of a permanent employee.
According to Mr. Blair, it is an employment status based distinction in terms of hourly pay
which is set out in Schedule "A",
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performing supply work under article 14.02(e), wording would have been inserted in article
14.02(e) similar to the wording cohtained in article 2.04.
Only one authority was submitted by the parties. The union relied extensively upon
the rationale of Mr. Justice Laskin of the Ontario Court of Appeal in the recent judgment in
Lakeoort Beverages v. Teamsters. Local Union 938 (2005), 143 L.A.C. (4th) 149.
In the matter before me, I find that the judgment of the Court of Appeal in Lakeport
Beverages is instructive from the standpoint of the applicable standard of review of an
. arbitrator's award in Ontario. It is also instructive for the Court's rationale on employment
status, the importance of seniority and, in interpretatibn matters, the need to have regard to
the collective agreement as a whole. In addition to different contractual language and
different facts, there.is at least one further significant distinguishing factor in the Lakeport
case from the instant grievance in that the Lakeport case involves a recall matter while the
case before me involves a call-in matter.
In ~his case I,am required to interpret the provisions of the collective agreement - the
operative .clause being article 14.02(e). In that regard, there is no dispute that the collective
agreement must be looked at in its totality.
As a starting point, article 2.02 defines four categories of employees - full time, part
time, supply and contract employees. Each of the four categories represents a particular
employment status. Under article 12.01, seniority is defined in (a) for permanent full-time
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and permanent part-time employees ubased on the date in which the employee last acquired
a permanent position within the bargaining unit." In article 12.01(b), seniority for s,upply
employees is "based on their last date of hire with the Employer." Article 12,02 goes on to
provide for two separate seniority lists - one for permanent full-time and permanent part-time
employees and a separate list for supply employees, Article 12.07 provides that seniority will
be lost and employment will be terminated under certain defined circumstances of which
12.07(f) and (h) are relevant to the matter before me, To further illustrate the differences in
employm~nt status, article 17.03 provides that "supply employees will be called in on an as
needed basis with the available hours to be offered to supply employees by seniority,
provided continuity of care for the program is maintained." Briefly stated, in the collective
agreement before me full-time employees, such as Heather Johnson, have a full range of
benefits, including health and welfare benefits, the right to perform call-in hours of work,
while on lay-off in priority to supply employees, provided written notice has been given to the
employer of their willingness to perform such work, the right to recall from lay-off, the right
to be paid wages in accordance with Schedule "A", the right to access the grievance and
arbitration provisions and the right to be disciplined or discharged only for just cause. See,
for example, Lakeport Beveraqes v. Teamsters Local Union 938, supra, at p. 153.
Schedule "A" to the collective agreement sets out the hourly wage rates for seven
separate classifications: Resource Teacher, Assistant Supervisor, ECE (Early Childhood
Education), ECE Supply, Non ECE, Non ECE Supply and Cook, Fo~ each of the
classifications specified in Schedule "A~ there is an entry level wage rate and a higherwage
, . 'J
"
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rate after serving one year in the classification, In addition, there are percentage increases
in varying amounts effective April 1 , 2004 and further increases effective April 1, 2005.
Article 14.02(e) provides that the rights of supply employees are subordinat~ to the
rights of permanent. employees who are on lay-off and willing to work supply shifts.
Therefore, under the provisions of 14.02(e), permanent employees on lay-off whether full-
time or part-time have a priority over supply employees in the assignment of call-in hours of
work. Under 14.02(e), full-time and part-time employees are called in if they are willing to
. work supply shifts, having previously indicated to the employer their willingness to work.
Cert~inly, these full-time and part-time employees accepting call-in work under 14.02(e) are
not supply employees. In my view, article 14.02(e) gives a priority to full-time and part-time
. .
employees, who are on lay-off, for call-in hours of work because of their permanent
employee status,
Acceptance of call-in work under 14,02(e) does not alter the employment status of a
permanent employee. The last sentence of 14.02(e) makes it clear that the refusal of a call-
in does not constitute a recall refusal under the provisions of article 12.07(f) of the collective
agreement. The refusal of the call-in work under 14.02( e) emphasizes that these employees
remain in the classification of full-time or part-time employees,
It would appear to me that, except where there is language to the contrary, the
scheme adopted by the parties in this collective agreement is the absolute separation of the
emploYrT!ent status, the classifications and the accompanying wage rates.
t, I . '>-
.I.
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Article 14.02(e) allows both full-time and part-time employees on lay-off to perform
call-in hours of work in what otherwise would be supply work. If the parties had intended that
q full-time or part-time employee would be paid the supply rate, the article could have been
expressed to reflect that intent. Obviously, there is no such language. Due to the prohibition
contained in article 10.04, I have no authority to alter, amend or substitute any provision in
lieu thereof.
In. summary, I read this collective agreement in the belief that article 14.02(e) and
. Schedule A are employment status driven and, accordingly, permanent full-time and part-
time employees shall be paid as such when performing call-in hours of work.. Support for this
interpretation, in my opinion, can be foun,d in the final sentence on Schedule 'W' which reads
as follows: "Supply employees will receive the service rate of the classification they are
replacing for absences of thirty (30) worked days or longer while they remain in the position,
except in the circumstance where they would receive a decrease in pay."
In the result this policy grievance is allowed. I shall retain jurisdiction in the event of
any difficulty encountered as to the implementation of this award including that of the
appropriate compensation.
DATED at Brantford, Ontario, this 16th day of March, 2006.
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....... .~..............,................... /...,...................
RI L. VERITY, Q.C.
OLE ARBITRATOR