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HomeMy WebLinkAboutHayden et al 10-02-28 IN THE MATTER OF AN ARBITRATION BETWEEN: MIDDLESEX COMMUNITY LIVING (The "Employer") AND ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 144 (The "Union") Individual Grievances of Hayden, Sobanski, Dowden Pereira, Carrion, Matt, Garzon, Williams and Employer Grievance SOLE ARBITRATOR: John Stout APPEARANCES: FOR THE EMPLOYER: Paula M. Rusak, Counsel Sherri Kroll, Executive Director Maraika Doucet, Director Organizational Development FOR THE UNION: David Wright, Counsel Marie Thomson, Grievance Officer Rhonda Gibson, 1st Vice President and Steward Local 166 Doug Paris, Steward Local 166 Mary Ann Sobanski, Grievor HEARING HELD IN LONDON, ONTARIO, ON FEBRUARY 16, 2010 1 AWARD INTRODUCTION I was appointed by the parties to hear and determine eight (8) individual grievances filed by the Union and one (1) grievance filed by the Employer. All of the grievances are related to payment for mandatory training sessions. The individual grievances claim that the Employer has violated article 17.04 of the Collective Agreement and the Employment Standards Act "specifically but not limited to sections 1.0 and 11.1" by not paying the correct amount of wages for attending mandatory training sessions. The Employer grievance alleges that the Union has breached article 8.05 of the Collective Agreement by filing grievances that concern a matter "already dealt with and disposed of by Arbitrator Gregory Brandt dated January 8, 2009". The parties agree that I was properly appointed. However, the Employer raises a preliminary objection submitting that I have no jurisdiction to hear the Union's grievances since the subject matter of the Union's grievances has been dealt with in an award issued by arbitrator Gregory Brandt, see Middlesex Community Living and Ontario Public Service Employees Union Local 144 (Union Policy Grievance-Training Allowance), unreported decision dated January 8, 2009. After opening statements, the parties agreed that I would hear the Employer's preliminary objection and render an award. In determining the preliminary objection, I would hear the Union's submissions both on the objection and the merits. If I dismissed the Employer's preliminary objection, then the Employer would then be provided with an opportunity to address the merits of the Union's grievances. 2 THE FACTUAL CONTEXT The Union presented the following facts as the background of this dispute: 1. The individual grievances filed by the Union relate to training sessions held on April 2 and April 25, 2009. 2. The grievances, with the exception of the date of the training session, are identically worded and arise from the fact that the grievors were paid minimum wage for the time they spent at the training session in question. 3. It is the position of the Union that the grievors are entitled to be paid at their regular hourly wage for hours spent in mandatory training sessions. 4. It is the position of the Employer that they are only entitled to be paid the minimum wage as prescribed under the Employment Standard Act for hours spent in mandatory training sessions. 5. The grievors are all employed as Outcome Support Facilitators, either full or part-time. 6. Outcome Support Facilitators are required to attend the following mandatory training courses: CPI (Crisis Prevention Intervention) WHMIS First Aid/CPR Annually Annually Every Three Years 7. The current Collective Agreement between the parties runs for a term from April 1 , 2007 to March 31, 2010. It was reached as the result of a Memorandum of Settlement entered into on August 12, 2007, following a lengthy strike. 8. Prior to August 12, 2007, employees of the Employer were not paid for the hours spent in attendance at mandatory training sessions. The only exception to this was where WHMIS training was scheduled during an employee's regular working hours, in which case they were paid regular wages while attending such training. 9. While employees were not paid for attendance at mandatory training, they were able (with the exception of WHMIS training as noted above) able to attend such training outside of regular work hours. 3 10.The August 12, 2007 Memorandum of Settlement introduced Article 17.04 to the Collective Agreement. Article 17.04 provides that "Employees shall be paid in accordance with the Emplovment Standards Act when attending mandatory training courses." 11. The Employer took the position that this Article only requires it to pay employees the minimum wage prescribed under the Employment Standards Act when attending mandatory training. 12. Commencing after August 12, 2007, the Employer paid all employees minimum wage for all such hours, with the exception of WHMIS training scheduled during a employee's regular work hours, which were paid at regular wage rates. 13.ln addition, however, employees were told that they had to keep to their regularly scheduled hours and that training could no longer occur outside their regular work hours. Full-time employees regularly work 37.5 hours per week. Part-time employees can be scheduled for up to 30 hours per week. 14. The result is that an employee earns less money in a week that she/he undertakes mandatory training than they do in a week without training as they still work the same number of hours but are only paid minimum wage as opposed to their regular wage for some of those hours. 15. The Union disagreed with the Employer's interpretation of Article 17.04 and filed a grievance on February 1, 2008 asserting that employees are entitled to be paid their regular wages while attending mandatory training. 16. That grievance came on for hearing before Arbitrator Brandt on December 19, 2008. By decision dated January 8,2009, Arbitrator Brandt dismissed the grievance and held that Article 17.04 only requires the Employer to pay minimum wages as prescribed under the Employment Standards Act while attending mandatory training. 17. The Union continued to dispute this interpretation and the instant grievances were filed after mandatory training sessions held on April 2 and April 25, 2009. 18.After the Brandt award was released, the Employer ceased paying regular wages to employees who attended WHMIS training during their regularly scheduled hours. 4 The Employer substantially agrees with the facts set out above, but with the following exceptions: 1. Paragraph 1 should be clarified to acknowledge that many more grievances have been filed relating to this issue. The parties have agreed to hold these other related grievances in abeyance. 2. Paragraph 4 should be amended to provide that the Employer also takes the position that I have no jurisdiction to address the Union's grievances as the issue arising from these grievances has already been dealt with by Arbitrator Brandt. 3. Paragraph 14 should be amended to reflect that employees do not always earn less money in a week when they undertake mandatory training. 4. Paragraph 18 should be amended to indicate that the Employer has not ceased paying regular wages to all employees who attended WHMIS training during their regularly scheduled hours. The parties agree that for the purposes of this award, I can accept the Union's stated facts with the Employer's exceptions noted above. However, this agreement is without prejudice to the Employer's ability to call evidence, if necessary, for me to determine the merits of the Union's grievances. RELEVANT PROVISIONS OF THE COLLECTIVE AGREEMENT The following provisions of the Collective Agreement were cited in argument: 17.04 Employees shall be paid in accordance with the Emplovment Standards Act when attending mandatory training courses. (emphasis added) 17.01 Wages shall be paid in accordance with Appendix "A" attached, which forms part of this Agreement. The Employer will apply any moneys received from the Government of Ontario that are identified as salary and wages according to the formula provided, with full retroactivity, to the wages presently paid under Appendix "A". 17.03 If Night Asleep staff is required to be awake to tend to the needs of the clients, they will be paid at the Night Awake rate for all hours awake. 5 8.05 2.02 9.01 20.07 The decision of the majority shall be the decision of the Board. Where there is no majority decision, the decision of the chairperson shall be the decision of the Board. The decision of the Board of Arbitration shall be final and binding and enforceable on all parties, but in no event shall a Board of Arbitration have the power to change this agreement, or alter, modify or amend any of its provisions, or substitute any new provisions for any existing. provisions, nor give any decision inconsistent with the terms and provisions of this Agreement. The Employer, employees and the Union agree to conduct their affairs in accordance with the Ontario Human Rights Code. Accordingly there shall be no discrimination based on race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, age, record of offenses, marital status, family status or handicap. The parties agree that health and safety matters will be handled under the Occupational Health and Safety Act and will not be the subject of a Grievance or Arbitration under this Collective Agreement. The employer will pay for courses it has determined to be mandatory and employees will be paid at their regular rate of pay for mandatory staff meetings and mandatory courses excluding, First Aid, CPR, and CPI. For First Aid, CPR and CPI the Employer shall pay for course material. RELEVANT SECTIONS OF THE EMPLOYMENT STANDARDS ACT, 2000 The Union referenced a number of sections of the Employment Standards Act, 2000, S.O. 2000, Ch. 41 (as amended) (the "ESA"). In particular, the following sections of the ESA were relied upon by the Union: Definitions .Ll1lln this Act, "wages" means, (a) monetary remuneration payable by an employer to an employee under the terms of an employment contract, oral or written, express or implied, (b) any payment required to be made by an employer to an employee under this Act, and . (c) any allowances for room or board under an employment contract or prescribed allowances, 6 but does not include, (d) tips and other gratuities, (e) any sums paid as gifts or bonuses that are dependent on the discretion of the employer and that are not related to hours, production or efficiency, (f) expenses and travelling allowances, or (g) subject to subsections 60 (3) or 62 (2), employer contributions to a benefit plan and payments to which an employee is entitled from a benefit plan; (Usalaire") No contracting out Lill Subject to subsection (2), no employer or agent of an employer and no employee or agent of an employee shall contract out of or waive an employment standard and any such contracting out or waiver is void. 2000, c. 41, s. 5 (1). Greater contractual or statutory right ill If one or more provisions in an employment contract or in another Act that directly relate to the same subject matter as an employment standard provide a greater benefit to an employee than the employment standard, the provision or provisions in the contract or Act apply and the employment standard does not apply. 2000, c. 41, s. 5 (2). PART V PAYMENT OF WAGES Payment of wages 1.h..i1l An employer shall establish a recurring pay period and a recurring pay day and shall pay all wages earned during each pay period, other than accruing vacation pay, no later than the pay day for that period. 2000, c. 41, s. 11 (1). Manner of payment ill An employer shall pay an employee's wages, (a) by cash; (b) by cheque payable only to the employee; or (c) in accordance with subsection (4).2000, c. 41, s. 11 (2). Place of payment by cash or cheque ill If payment is made by cash or cheque, the employer shall ensure that the cash or cheque is given to the employee at his or her workplace or at some other place agreeable to the employee. 2000, c. 41, s. 11 (3). Direct deposit ill An employer may pay an employee's wages by direct deposit into an account of a financial institution if, (a) the account is in the employee's name; (b) no person other than the employee or a person authorized by the employee has access to the account; and (c) unless the employee agrees otherwise, an office or facility of the financial institution is located within a reasonable distance from the location where the employee usually works. 2000, c. 41, s. 11 (4). 7 If employment ends illllf an employee's employment ends, the employer shall pay any wages to which the employee is entitled to the employee not later than the later of, (a) seven days after the employment ends; and (b) the day that would have been the employee's next pay day. 2000, c. 41, s. 11 (5). Statement re wages ~ On or before an employee's pay day, the employer shall give to the employee a written statement setting out, (a) the pay period for which the wages are being paid; (b) the wage rate, if there is one; (c) the gross amount of wages and, unless the information is provided to the employee in some other manner, how that amount was calculated; (d) Repealed: 2002, c. 18, Sched. J, s. 3 (3). (e) the amount and purpose of each deduction from wages; (f) any amount with respect to room or board that is deemed to have been paid to the employee under subsection 23 (2); and (g) the net amount of wages being paid to the employee. 2001, c. 9, Sched. I, s. 1 (2); 2002, c. 18, Sched. J, s. 3 (3). m Repealed: 2002, c. 18, Sched. J, s. 3 (4). Electronic copies ill The statement may be provided to the employee by electronic mail rather than in writing if the employee has access to a means of making a paper copy of the statement. 2000, c. 41, s. 12 (3). Statement re wages on termination 12.1 On or before the day on which the employer is required to pay wages under subsection 11 (5), the employer shall provide the employee with a written statement setting out, (a) the gross amount of any termination payor severance pay being paid to the employee; (b) the gross amount of any vacation pay being paid to the employee; (c) unless the information is provided to the employee in some other manner, how the amounts referred to in clauses (a) and (b) were calculated; (d) the pay period for which any wages other than wages described in clauses (a) or (b) are being paid; (e) the wage rate, if there is one; (f) the gross amount of any wages referred to in clause (d) and, unless the information is provided to the employee in some other manner, how that amount was calculated; (g) the amount and purpose of each deduction from wages; (h) any amount with respect to room or board that is deemed to have been paid to the employee under subsection 23 (2); and (i) the net amount of wages being paid to the employee. 2002, c. 18, Sched. J, s. 3 (5). 8 Deductions, etc. ~ An employer shall not withhold wages payable to an employee, make a deduction from an employee's wages or cause the employee to return his or her wages to the employer unless authorized to do so under this section. 2000, c. 41, s. 13 (1). Statute or court order m An employer may withhold or make a deduction from an employee's wages or cause the employee to return them if a statute of Ontario or Canada or a court order authorizes it. 2000, c. 41, s. 13 (2). Employee authorization m An employer may withhold or make a deduction from an employee's wages or cause the employee to return them with the employee's written authorization. 2000, c. 41, s. 13 (3). Exception ill Subsections (2) and (3) do not apply if the statute, order or written authorization from the employee requires the employer to remit the withheld or deducted wages to a third person and the employer fails to do so. 2000, c. 41, s. 13 (4). Same @ Subsection (3) does not apply if, (a) the employee's authorization does not refer to a specific amount or provide a formula from which a specific amount may be calculated; (b) the employee's wages were withheld, deducted or required to be returned, (i) because of faulty work, (ii) because the employer had a cash shortage, lost property or had property stolen and a person other than the employee had access to the cash or property, or (Hi) under any prescribed conditions; or (c) the employee's wages were required to be returned and those wages were the subject of an order under this Act. 2000, c. 41, s. 13 (5). Priority of claims 1.4:..J..1l Despite any other Act, wages shall have priority over and be paid before the claims and rights of all other unsecured creditors of an employer, to the extent of $10,000 per employee. 2000, c. 41, s. 14 (1). Exception m Subsection (1) does not apply with respect to a distribution made under the Bankruptcy and Insolvency Act (Canada) or other legislation enacted by the Parliament of Canada respecting bankruptcy or insolvency. 2001, c. 9, Sched. I, s. 1 (3). PART IX MINIMUM WAGE Minimum wage ~ An employer shall pay employees at least the prescribed minimum wage. 2000, c. 41, s. 23 (1). Room or board m If an employer provides room or board to an employee, the prescribed amount with respect to room or board shall be deemed to have been paid by the employer to the employee as wages. 2000, c. 41, s. 23 (2). 9 Determining compliance ill Compliance with this Part shall be determined on a pay period basis. 2000, c. 41, s. 23 (3). Hourly rate ill Without restricting the generality of subsection (3), if the prescribed minimum wage applicable with respect to an employee is expressed as an hourly rate, the employer shall not be considered to have complied with this Part unless, (a) when the amount of regular wages paid to the employee in the pay period is divided by the number of hours he or she worked in the pay period, other than hours for which the employee was entitled to receive overtime payor premium pay, the quotient is at least equal to the prescribed minimum wage; and (b) when the amount of overtime pay and premium pay paid to the employee in the pay period is divided by the number of hours worked in the pay period for which the employee was entitled to receive overtime payor premium pay, the quotient is at least equal to one and one half times the prescribed minimum wage. 2000, c. 41, s. 23 (4). THE EMPLOYER'S OBJECTION The Employer's position is that I have no jurisdiction to entertain the Union's grievances. According to the Employer, arbitrator Brandt has already decided the issu~ raised by the Union's grievances. The Employer suggests that the Union's grievances raise the same issue, between the same parties, seeking the same remedy relating to the same provision of the Collective Agreement and are the same grievance that was decided by Arbitrator Brandt. The Employer submits that in these circumstances, the matter is res judicata, and it would be an abuse of process to hear the Union's grievances. The Employer also refers to article 8.05 of the Collective Agreement. The Employer argues that article 8.05 provides that all decisions are final and binding on all parties and no recourse can be sought by looking to a different arbitrator. The Employer states that the award of arbitrator Brandt is enforceable unless the Union seeks judicial review, which the Union did not do. In these circumstances, the Employer argues that I have no jurisdiction to hear the Union's grievances. The Employer relies on the following authorities, Re Canadian Union of Public Employees, Local 207, and City of Sudbury (1965), 15 L.A. C. 403 (Reville); Re Essar Steel Algoma Inc. and U.S.W., Local 2251 (2008), 177 L.A.C. (4th) 183 10 (Stout); Grey Bruce Regional Health Centre and Ontario Public Service Employees Union, Local 235 (Lay-off Grievance) [1999] O.L.A.A. No. 606 (Briggs ). The Union submits that article 8.05 and the principle of res judicata do not apply. The Union points out that the events giving rise to the Union's grievances occurred after the award of arbitrator Brandt was issued. The Union does not dispute the general doctrine of finality. The Union accepts the principle that an arbitrator should be reluctant to depart from a previous arbitrator's decision concerning the same issue between the same parties under the same collective agreement. However, the Union argues that there is an exception when the previous decision is manifestly wrong. The Union submits that arbitrator Brandt was manifestly wrong and I ought to reconsider the issue based on subsections 1 (1) and 11 (1) of the ESA. The Union suggests that arbitrator Brandt's decision does not reference these sections of the ESA. Therefore, I am invited to find that in light of these sections of the ESA, the award of arbitrator Brandt is manifestly wrong and should not be followed. The Union relies on the following authorities: Re Toronto Transit Commission and Amalgamated Transit Union, Local 113 (1985), 21 L.A.C. (3rd) 346 (Saltman); Re Artcraft Engravers Ltd. and Graphic Communications International Union, Local 517 (Discharge Grievance) (1990), 12 L.A.C. (4th) 363 (Brent); Re Selkirk Metalbestos Household Manufacturing Canada and Sheet Metal Workers' International Association (Dier Grievance) (1992), 27 L.A.C. (4th) 22 (Kates); OPSEU (Watts) and The Crown in Right of Ontario (Ministry of Community and Social Services), G.S.B. decision 1340/90, dated May 21, 1990 (Stewart); Re School District No. 39 (Vancouver) and British Columbia Teachers' Federation (2007), 166 L.A.C. (4th) 367 (Kinzie); Brown & Beatty, Canadian Labour Arbitration (4th ed.) (2009) Canada Law Book, 4:2100. 11 DECISION As pointed out by the Employer, I have recently issued an award dealing with this issue. In Re Essar Steel Algoma Inc., supra, at page 189-190, I stated as follows: The decision of arbitrator Barton in Pharma Plus Drugmarts Ltd. and U.F. C. W., Loc. 175, supra, provides a very useful summary of the doctrine of res judicata. Arbitrator Barton set out three aspects of the doctrine as follows: In civil proceedings res judicata can mean a number of things. At its narrowest it is a reference to the doctrines of merger and bar. This narrow doctrine which is also known as cause of action estoppel essentially means that if two parties proceed to judgment in an action and if a plaintiff wins, the cause of action mergers in the judgment and disappears. Thus no further action can be brought upon it. A second meaning of res judicata is that of factual estoppel, also known as issue estoppel and collateral estoppel. At its narrowest it means that between two parties to a lawsuit and their privies certain facts essential to the first decision will be established between the parties and no evidence will be led concerning them in a subsequent proceeding between the same parties. This doctrine is a rule of evidence designed primarily to prevent inconsistent results in subsequent court proceedings. Another aspect of res judicata which seems to have developed is one of abuse of process. This broader aspect of res judicata essentially means that if parties had a fair opportunity to litigate a particular issue they will not be allowed to relitigate the same issue later. The best example of an application of this doctrine is where a person is convicted criminally and then tries to prove in a subsequent civil case some fact found against that person in the criminal case. Some arbitrators have been reluctant to apply the doctrine of res judicata. Instead, some arbitrators seem to have applied the concepts as a matter of discretion as described by arbitrator Liang in Stelco Inc., Hilton Works and U.S. W.A., Loc. 1005, supra. However, the policy reasons for the doctrine of res judicata and exercising discretion are both the same. The integrity and finality of decision-making must be protected. One of the most important labour relations principles is the concept of final and binding resolution of differences by arbitration during the term of a collective agreement. Labour relations peace is built upon this concept and 12 operates on the fundamental premise that the parties will respect and abide by the decisions of arbitrators. The parties must be able to rely on decisions being final and binding so that they may properly govern themselves in administering, operating under and bargaining the terms of their collective agreement. If previous decisions are not respected, then there will be no resolution of differences and the relations between the parties will only worsen. As a result, apart from the doctrine of res judicata, it is rare for an arbitrator to disregard a previous decision between the parties, dealing with the same issue under the same collective agreement, see Re Algoma Steel Corporation Ltd. and United Steelworkers, Local 2251, supra. The principles I stated in Essar Steel Algoma Inc., supra, are equally applicable to this matter. However, the factual distinctions found in this case and the arguments raised by the parties require further elaboration. The Employer takes the position that I have no jurisdiction to decide the Union's grievances. Reliance is placed on article 8.05 of the Collective Agreement and a number of arbitration awards. The most direct decision relied upon is Re Canadian Union of Public Employees, Local 207, and City of Sudbury, supra, at page 403-404 where arbitrator Reville stated as follows: "The authorities are legion that a board of arbitration has no jurisdiction to consider or alternatively, that the grievor and his or her union representatives are barred and estopped from processing a grievance which is identical to a former grievance filed by the grievor and either withdrawn, abandoned or settled, or determined by a board of arbitration. Some of the cases proceed on the basis of estoppel and others on the principle of res judicata, but regardless of the approach taken, the authorities are overwhelming that a board of arbitration has no jurisdiction to entertain such a second grievance... There is also substantial authority to support the proposition that an arbitration board has no jurisdiction to determine a grievance which, though not identical in wording and form to the former grievance lodged by the same grievor, is identical in substance." The general propositions stated by arbitrator Reville are not an entirely accurate reflection of the law today. Rather in terms of jurisdiction, it is more correct to say that an arbitrator has no jurisdiction to hear a grievance that has already been decided by a different arbitrator. The previous arbitrator has exclusive jurisdiction to hear and determine the grievance submitted to 13 arbitration. Further, the decision of the previous arbitrator is final and binding on the parties and the affected employees and cannot be set aside except on judicial review. At the same time, an arbitrator has jurisdiction to hear a different grievance that arises based on new facts, even if the issue is the same as the issue dealt with by an arbitrator in a previous proceeding. However, the arbitrator is also obligated to apply the law, including the common law doctrines of res judicata and abuse of process. An arbitrator must also apply labour relations principles including the concept of final and binding resolution of disputes by arbitration during the term of a collective agreement. The parties in this matter have incorporated this exclusive jurisdiction model in article 8 of their Collective Agreement. Once a grievance has been referred to arbitration and decided, then that decision is final, binding and enforceable. However, article 8.05 does not preclude the filing of a different grievance. Article 8.05 only confirms that the decision of an arbitrator is final in relation to the grievance that was submitted to arbitration. In this matter, the Union's grievances all relate to facts that arose subsequent to arbitrator Brandt's award. I acknowledge that the issue raised in the Union's grievances is the same issue decided by arbitrator Brandt. However, the Union's grievances are not the same grievance that was decided by arbitrator Brandt. Accordingly, I find that article 8.05 does not preclude my jurisdiction to hear this matter. I conclude that I have jurisdiction to hear and determine the Union's grievances. I also find that I am obligated to apply the common law doctrines and labour relations principles noted above. As stated in Essar Steel Algoma Inc., supra, it is rare for an arbitrator to disregard a previous decision between the parties dealing with the same issue under the same collective agreement. It has been said that the previous award should be followed unless it is manifestly wrong or patently unreasonable, see 14 Grey Bruce Regional Health Centre and Ontario Public Service Employees Union, Local 235 (Lay-off Grievance) at page 20. In my OpiniOn, departure from a previous decision between the parties addressing the same issue under the same collective agreement should only occur where relying on the previous decision would create unfairness. There are a number of instances when re-consideration and departing from the previous decision would be appropriate, for example: 1) When the first proceeding was tainted by fraud or dishonesty; 2) When fresh, new evidence that was previously unavailable is brought forward and it impeaches the original result; 3) When the first proceeding did not consider the Charter, legislation or a binding judicial decision, see Re School District No. 39 (Vancouver) and British Columbia Teachers' Federation, supra; 4) When the previous decision is wrong at law, see Re Artcraft Engravers Ltd. and Graphic Communications International Union, Local 517 (Discharge Grievance), supra, at page 8. This is not an exhaustive list. In every situation, the arbitrator must consider whether relitigation of the issue and departing from the previous decision would be detrimental to the grievance and arbitration process. The focus must be preservation of the integrity of the process, unless unfairness would result. I have carefully considered the evidence and submissions of the parties. I conclude that there is no need for the Employer to provide any additional evidence or submissions on the merits. I find that there is no valid reason for me to re-consider the issue addressed in the award of arbitrator Brandt. The facts before me are not meaningfully distinguishable from the facts before arbitrator Brandt. Arbitrator Brandt considered a policy grievance alleging 15 violation of article 17.04. The policy grievance challenged the Employer's payment of the minimum wage rate set out in the ESA for attending mandatory courses. The issue concerned the interpretation of article 17.04 of the Collective Agreement. The remedy sought by the Union was payment based on an employee's regular rate of pay under the Collective Agreement. In this matter, the Union's grievances are filed on behalf of individuals. The issue and remedy sought are exactly the same as the issue and remedy sought before arbitrator Brandt. The only difference is that the mandatory training courses involved in the Union's grievances before me involve courses attended after arbitrator Brandt's decision. The only new issue raised by the Union is an argument that arbitrator Brandt was manifestly wrong because he did not properly consider subsections 1 (1) and 11(1) of the ESA. I have carefully reviewed arbitrator Brandt's award and I am not convinced that he did not properly consider subsections 1 (1) and 11 (1) of the ESA. It is not unusual for arbitrators to be brief in their awards and not cite every authority considered in arriving at a decision. Arbitrator Brandt provides his reasons and interpretation of article 17.04 at pages 4-6 of his award: "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 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 it might have been the intention of the union there is nothing in the evidence of Mr. Nield that would suggest that it 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 have such an obligation included in the collective agreement as an obligation to pay for such attendance would exist separate and apart from the collective 16 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 purposes 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 "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 purposes 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 of itself. 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 union submits, a reference solely for the purposes of establishing an obligation to pay-an obligation which the Employer does not dispute." It is clear to me that arbitrator Brandt did turn his mind to the language of the Collective Agreement and the general reference to the ESA found in article 17.04. Arbitrator Brandt also clearly considered provisions of the ESA when interpreting the language chosen by the parties. Even if arbitrator Brandt did not consider all of the relevant provisions of the ESA, I do not believe that fairness requires a re-consideration of his decision and a different result. Subsection 11 (1) speaks to the payment of wages to employees on a recurring pay day. Subsection 1 (1) defines "wages" as, among other things, monetary remuneration payable under the terms of an employment 17 contract. In a unionized workplace the employment contract is a collective agreement. Arbitrator Brandt interpreted the Collective Agreement and found that the wages to be paid employees for attending mandatory training sessions is the minimum wage set out in the ESA. Consideration of these two subsections of the ESA may bolster the Union's previous argument. It may also provide the basis for a different but reasonable outcome. However, it does not result in undermining the reasonableness of arbitrator Brandt's' interpretation of the Collective Agreement. More importantly, consideration of these two subsections does not render arbitrator Brandt's decision wrong in law. I conclude that there is no valid reason for not following arbitrator's Brandt's award. DISPOSITION In all the circumstances, I conclude that I have jurisdiction to hear the Union's grievances. However, I also find that the Employer is not required to provide any further evidence or submissions. After reviewing the submissions and authorities provided by the Union, I conclude that arbitrator Brandt's award provides a reasonable interpretation of the language found in the Collective Agreement. Further, there is no reason to re-consider and not follow his award. The Employer's preliminary objection is allowed and the Union's grievances are dismissed. I remain seized of the Employer's grievance. Dated at Toronto, Ontario this 28th day of February 2010. .;t1 1 " '1 .j ,'] /f /" I /!l..........~... II, '''1"",,-,., r -'trr"'ll ~ .J if John Stout - Arbitrator 18