Loading...
HomeMy WebLinkAboutUnion 01-04-30 " IN THE MATTER OF AN ARBITRATION BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the "Unionl1) -AND- ONTARIO PROPERTY ASSESSMENT CORPORATION (the "Employer") AND IN THE MATTER OF GRIEVANCES REGARDING TEMPORARY EMPLOYEES' ELIGIBILITY TO RECEIVE SPECIAL TERMINATION PAYMENTS BOARD OF ARBITRATION Robert D. Howe, Chair Pamela Munt-Madill, Union Nominee Robert Gallivan, Employer Nominee APPEARANCES For the Union Ed J, Holmes, Counsel Jennifer Reid For the Employer D.K. Gray, Counsel G, Volkes A hearing in the above matter was held in Toronto, Ontario on March 7, 2001, AWARD The issue to be decided in this award is whether temporary employees of the Ontario Property Assessment Corporation (also referred to in this award as 1I0PAC" and the "Employer" for ease of exposition), whose employment contracts expire through the effluxion of time, are entitled to receive compensation under the following letter of understanding (the "Letter of Understandingll) which forms part of the parties' collective agreement (the "Agreement"): LETTER OF UNDERSTANDING RE: Special compensation entitlement on termination Dear Madam: This will confirm that full-time employees who accepted employment with OPAC at the time of the transfer, December 31, 1998, or who accepted positions with OPAC as a result of competitions for approximately "29 Corporate Services positions" posted on or before December 31, 1999 will receive a special compensation entitlement on termination or death equal to one week per year of combined service with the OPS and OPAC to a maximum of 26 weeks less one week per year of OPS service for which termination or severance pay has been paid at the time of the transfer, multiplied by the OPAC salary at the time of the employee's termination. This includes any severance pay under the Employment Standards Act. This entitlement also applies to full-time Ministry of Finance employees who were on long-term disability prior to December 31, 1998 who have returned to work and commenced full-time employment with OPAC in the bargaining unit on or before December 31, 1999 or who were able to return to work on or before December 31, 1999 under a medically-approved rehabilitation program which will lead to full-time employment shortly thereafter. Yours truly, Eric Preston Vice-President (:UJ1/uLdLe diHl HUlIlcill Service::" 1 At the commencement of the hearing, counsel advised the Board that they had agreed to argue the case as a matter of principle, and to leave for possible future determination other issues; including the timeliness of the grievances and the question of whether the grievances are properly before the Board. Facts Counsel agreed to argue the case on the basis of the facts which were stipulated during the course of their submissions, and the exhibits which were entered into evidence on the agreement of counsel. OPAC was created by statute on December 31, 1998 to perform property assessment functions previously performed by the Ontario Ministry of Finance. OPAC has a monopoly on those functions until 2004; after which the performance of those functions will be open to competition. When OPAC was created, most if not all the members of the workforce employed by the Ministry of Finance were offered jobs with OPAC; including classified employees and unclassified employees. The latter were employees who had no job security; and whose rights under the collective agreement between OPSEU and the Crown were very limited. They were employed under contracts that ran from one specified date to another specified date. When OPAC was created, the classified employees were given notice or severance pay to complete the ternlination of Lln',:;! ~c:IIIUI "'yill\~lJl. 1'1; Ul Llil:: CLUWlJ. ]'be uIH.:l dKKi .Lied employees 2 .' were given notice but no severance payor any other payment. Unclassified employees who accepted employment with OPAC were hired as temporary employees. As was the case with the Ministry of Finance1s unclassified employees, OPAC's temporary employees were given contracts effective from one specified date to another specified date. When the latter date arrived, the contract expired and the employment relationship ended. All but one of the grievances involve temporary employees whose contracts expired through the effluxion of time. Although the remaining grievance involves a temporary employee whose contract ended prior to its expiry date, counsel agreed to argue this phase of the case on the basis that it involves temporary employees whose contracts expired through the effluxion of time. The specimen temporary employment letter entered as Exhibit 4 in these proceedings is on OPAC letterhead and reads as follows: January 2, 2001 Subject: Temporary Employment I am pleased to offer you temporary employment with the Ontario Property Assessment Corporation, Office, effective to Your job title is the rate of $ assignment. and you will be paid at per hour for the duration of this The terms and conditions of your employment are detailed in Article 5 of the Collective Agreement between OPSEU and OPACj this document is available on the OPAC Intranet site. Should circumstances change within the Corporation and it lS necessary to terminate your f~rnployrnent you will "1 be given notice in accordance with the notice provisions specified under the Employment Standards Act. Please sign and return the enclosed copy of this letter acknowledging your acceptance of the offer of temporary employment. Sincerely, Employee Signature Although the parties were not in a position to stipulate that the grievors received that particular letter, it is common ground between them that all of OPAC's temporary employees received something similar to it. Collective Agreement Provisions During the course of their able submissions, counsel referred to a number of provisions of the Agreement, including the following: ARTICLE 2 - RECOGNITION 2.01 The Employer recognizes the Union as the sole and exclusive bargaining agent of all employees of the Employer in the Province of Ontario, save and except supervisors (other than Manager Mapping Services and Manager Data Services), managers, those above the rank of supervisors and managers, those employed in a confidential capacity in matters relating to labour relations and those in the office of the President and CAO. 2,02 For greater certainty, such employees include regular and temporary employees, students, and such other employees as may be mutually agreed upon. ARTleL,E 5 - TEMPORARY EMPLOYEES AND STUDENTS S.Ul The following articles shall apply to temporary emp~oyees; l, 2, 3, 4, 6, 7, 8, 9, 10 (except 4 10.05), 12 (except 12.06 and 12.07), 15, 16, 17, 18, 20, 27 and 28. No other articles apply. 5.02 Temporary employees shall receive 10 percent of base wages in lieu of holidays, vacations and benefits and in lieu of pay therefor. 5.03 Temporary employees shall accrue attendance credits at the rate of one and one-quarter days after each month of full attendance. Attendance credits are for sick leave purposes only, and for no other purpose. Use of these credits is subject to such medical evidence, if any, as the Employer may require. 5.06 Where the same work has been performed by a temporary employee for any period of at least two (2) consecutive years after the date of ratification (except for situations ,.,here the employee is replacing a regular employee on a leave of absence authorized by the Employer or as provided for under the collective agreement) and where the Employer has determined that there is a continuing need for that work to be performed on a full-time basis, the Employer shall establish a regular position to perform that work. 5.07 Where the Employer has determined that it will convert a position in accordance with 5.06 the status of the incumbent in the position will be converted from temporary to regular, provided that the incumbent has been in the position in question for at least two years. Summary of SubJnissions by Counsel for the Employer On the agreement of the parties, counsel for OPAC proceeded first with his submissions (without conceding that the Employer bears any onus in these proceedings), He presented three alternative submissions in support of his clientts contention that the grievances should be dismissed. His first submission was that OPAC's temporary employees whose cn1J..;1 ()y'rncflt CC)11 L 1'{:1 c L r-; (;X'f)Jui:- {~ ~ - '_'_;__n' , .n " , Lll.!UU~Aj I 1 ~ r..... ,.~ 1.11t~ e.t.t. IU..A..IUU U.I LilH~ dre 5 not entitled to receive special termination payments under the Letter of Understanding because Article 5 of the Agreement specifically spells out those portions of the Agreement that apply to temporary employees, and the Letter of Understanding is not one of them. Although he acknowledged that two of the Agreementrs letters of understanding (the lILump-Sum paymentH letter, and the "Seniority - Temporary Employees" letter) would apply to temporary employees because those two letters specifically mention temporary employees, he submitted that none of the other letters of understanding apply to them. In support of that submission, he noted that although temporary employees are included in the bargaining unit, many significant provisions of the Agreement do not apply to them by virtue of Article 5.01, including the unjust discharge clause (Article 10.05), the seniority provisions (Article 11), the provisions regarding job vacancies (Article 12), and the layoff and recall provisions (Article 13). Employer counsel's second argument was that the special compensation entitlement referred to in the Letter of Understanding is a benefit within the meaning of Article 5,02, under which temporary employees receive "10 percent of base wages in lieu of holidays, vacation and benefits and in lieu of pay therefor." In support of that contention, he submitted that "benefits" is a word of large import including all monetary advantage to employees, and referred the Board to the following authorities: IorontQ__g_l;m~J;gl..HQf:lpit919n~::LQntg,J::Jo NllrSf'~'?~_lh?J30ci~_U-=-ioll_fE~our Tour NursesgdevanceL unreported 6 award dated June 29, 1990 (H.D. Brown); Family Services of Hamilton Wentworth and OPSEU. Local 216 (holiday pay grievance of Terry Schwendinan) i unreported award dated December 5, 1989 (Barton) i Regional Municipality of Ottawa-Carleton and Ottawa-Carleton Public Employees Union. CUPE Local 503 (OHIP payroll tax grievance), unreported award dated May 15, 1990 (Stanley); Re Alexandra Marine & General Hospital and O.N.A. (1990), 17 L.A.C. (4th) 270 (Devlin); and Brown and Beatty, Canadian Labour Arbitration (3rd Ed.), at pages 8-2 to 8-3. Mr. Gray's third argument was that on the face of the Letter of Understanding, the special compensation entitlement for which it provides is payable only lion termination or deathll, and does not apply to someone whose employment contract simply expires. He submitted that the word "termination" implies some act on the part of the Employer to put an end to the employment relationship, as opposed to simply allowing the employment contract to run out. In support of that argument, he referred to Traders Group v. Stanley Mutual Fire Ins. (1983), 47 N.B.R. (2d) 310 (Q,B.) . .1sl Summary of Submissions by Counsel for the Union Union counsel commenced his submissions by referring the Board to Re Grey County Board of Education and O.S.S.T.F. (1983) 1 12 L. A. C. (3d) 412 (Tepli tsky), as authority for the proposition that onus has no role to play in the interpretation of collective agreements, as the true meaning '7 of any contract is a question of law and there is no onus ordinarily applicable in resolving questions of law. He submitted that it is important to read the Letter of Understanding in light of what the parties have said in Article 2.01, which refers to "all employees", and in Article 2.02, which provides that IIsuch employees include regular and temporary employees, students, and such other employees as may be mutually agreed. 11 He noted that the only modifier to the word "employeesll contained in the Letter of Understanding is "full-time", and submitted that if the parties had wanted the letter to apply only to regular employees, they could have said so. He also submitted that acceptance of the Employerts first argument would require the Board to read out the words IIfull timell and to read in the word IIregular". He referred the Board to Re Canadian Red Cross Society and S.E.I.U. (1999) 84 L.A.C. (4th) 314 (Whitaker) in support of his client's interpretation, and urged us to read Article 2, Article 5, and the Letter of Understanding together in deciding the case. Mr. Holmes submitted that Article 5 only talks about which articles of the Agreement do and do not apply to temporary employees, and does not talk about letters of understanding, It was his contention that rather than inferring from Article 51s silence regarding letters of understanding that they do not apply to temporary employees, the Board should conclude that all of those letters apply to temporary employees in a general sense, and then determine their particular applicability on the basis of whether H temporary employees meet or do not meet the conditions established in the various letters of understanding. He also submitted that the letters of understanding are obviously part of the Agreement because they are listed in the Agreement's Table of Contents, which first lists its 28 articles and then lists its 16 letters of understanding. It was his contention that a number of those letters apply to temporary employees, including the letters regarding Lump-Sum Payment, Seniority - Temporary Employees, Special compensation entitlement on termination, Safety Equipment, Job Descriptions, Harassment Policy, and Violence in the Workplace. Counsel for the Union noted that entitlement to special compensation under the Letter of Understanding arises "on termination or death", and submitted that the inclusion of Udeathll as a trigger indicates that entitlement is not dependent upon some act on the part of the Employer. He further submitted that the letter must be read in its entirety in the context provided. He argued that in common parlance IIterminationl1 occurs where there is an employer-employee relationship which has been severed. He also referred the Board to Re Canadian Union of Public Employees, Local 79. and Municipality of Metropolitan Toronto (1972), 24 L.A.C. 90 (Rayner), which held that the discharge provision in Local 791s collective agreement applied to a temporary employee even though the employment relationship had been terminated by lapse of time. AfLer noLing that the concepts of fuJl-time or 9 part-time employment are not defined in the Agreement, Union counsel referred the Board to OP8EU (Group Grievance, Clapperton et all and The Crown in Right of Ontario (Ministry of the Solicitor General and Correctional Services), unreported Grievance Settlement Board decision dated March 16, 1999, in support of his contention that if employees are working full-time hours, they can be considered to be full-time employees even if they do not have a contract which says that they are full-time. He also referred to the approach which has been adopted by the Ontario Labour Relations Board in determining whether employees are full-time or part-time, as set forth in Stratford Shakespearean Festival Foundation of Canada, [1984] OLRB Rep. Dec. 1778, and submitted that the parties presumably came into the Agreement with that understanding. In further support of his contention that temporary employees can be full-time employees under the Agreement, Mr. Holmes referred to the conversion provisions contained in Articles 5.06 and 5.07. In responding to the Employer counsel's argument that the special compensation entitlement referred to in the Letter of Understanding is a benefit within the meaning of Article 5.02, Union counsel submitted that the instant case is distinguishable from the authorities relied upon by the Employer, He contended that Article 5,02 is qualified by the Letter of Understanding, which he submitted provides for a payment over and above the standard fringe benefits referred ~o in ~he Agreement. He also contended that this 10 distinguished that payment from the standard fringe benefits referred to in the authorities relied upon by Employer counsel in support of that argument. Summary of Employer Counsel's Reply Submissions In replying to Union counsel's argument that the letters of understanding regarding Lump-Sum Payment, Seniority - Temporary Employees, Special compensation entitlement on termination, Safety Equipment, Job Descriptions, Harassment policy, and Violence in the Workplace apply to temporary employees, Employer counsel submitted that this argument ignores Article 5.01's list of articles which apply to temporary employees, and its statement that no other articles apply. After noting that UArticle 14 - Health & Safety" is one of the articles which does not apply to temporary employees, he submitted that the Safety Equipment letter of understanding is obviously designed to flesh out Article 14 and does not apply to temporary employees. He submitted that the same is true of the Job Descriptions letter of understanding (in that the Article 26.12 employee entitlement to a copy of his/her job description upon request does not apply to temporary employees), and the Harassment Policy letter of understanding (in that Article 26.05, by which the Employer, employees, and the Union agree to conduct their affairs in accordance with the Ontario Human Rights Code, is also not one of the provisions which Article 5.01 makes applicable to temporary employees). Thus he submitted that 11 the letters of understanding cannot be viewed in isolation, but rather must be considered in the context of the entire Agreement. Employer counsel's reply to Union counsel's "full-time employee" argument \qas that since the Agreement does not distinguish between full-time and part-time employees, but rather between regular and temporary employees, it would be far more consistent with the terms of the Agreement to conclude as a matter of construction that "full-time employeesU in the Letter of Understanding was intended to be a reference to regular employees. He also argued that the validity of this interpretation is reinforced by Article 15.01, which provides that the "normal work week for regular employees shall ordinarily consist of 36 and one quarter (36 1/4) hours per week", in that this description of full-time hours, which is the only one included in the Agreement, specifically applies solely to regular employees. Thus, he contended that Article 15.01 makes it clear that a full-time employee is a regular employee. He submitted that the cases relied upon by counsel for the Union are distinguishable from the present case, and further submitted that the manner in which the word "terminate" is used in the fourth paragraph of the specimen temporary employment letter makes it clear that the parties regard the termination of employment as a different thing from the expiry of the contract due to the effluxion of time. IYlr, Gray submitted that Union counsel's argument that 12 Article 5.02 is qualified by the Letter of Understanding is precisely the opposite of the proposition set forth by arbitrator Brown in Toronto General Hospital and Ontario Nurses' Association (Four Tour Nurses grievance), supra. He also took issue with Union counsel's submission that Article 5.02 only applies to "standard fringe benefits", and suggested that it is obvious from the caselaw, and from the list included in the aforementioned passage from Brown and Beatty, Canadian Labour Arbitration, that no such thing exists. Decision Having duly considered the able submissions of counsel, we have concluded that temporary employees whose employment contracts expire through the effluxion of time are not entitled to receive compensation under the Letter of Understanding, because the "special compensation entitlement" provided by the Letter of Understanding is a "benefitll within the meaning of Article 5.02 of the Agreement, which provides: Temporary employees shall receive 10 percent of base wages in lieu of holidays, vacations and benefits and in lieu of pay therefor. In Toronto General Hospital and Ontario Nurses' Association (Four Tour Nurses grievance), supra, arbitrator Brown found holiday pay to be a IIfringe benefitlt covered by the extra 14% included in the regular part-time nursesl hourly salary rate as a "percentage in lieu of fringe benefits". In reaching that conclusion, he wrote, i.n part, as follows (at 13 page 13) There is no mystery as to what is meant by a fringe benefit in the industrial relations context, it is simply part of compensation for work which is outside of direct salary or wages paid but attached to such payment by way of additional compensation in the employment relationship directly relating to the hourly salary or wages paid for worK performed. Pay for statutory holidays arises as a result of that relationship and is a paid benefit in addition to salary.... A similar conclusion was reached by arbitrator Barton in Family Services of Hamilton Wentworth and OPSEU, Local 216 (holiday pay grievance of Terry Schwendinan), supra, in which statutory holiday pay was found to be included in the percentage of their wage rate (10%) which, in accordance with the provisions of the applicable collective agreement, part-time employees received in lieu of benefits. The double-edged nature of such percentage payments in lieu of benefits is evidenced by the arbitral rejection not only of attempts by employees to obtain benefit payments in addition to such percentage payments, but also of attempts by employers to obtain reductions in the applicable percentage payments to reflect changes in the ambit of benefits covered by the percentage payments, or the cost of those benefits: see, for exanwle, Regional Municipality of Ottawa-Carleton and Ottawa-Carleton Public Employees Union. CUPE Local 503 (OHIP payroll tax grievance), supra, in which arbitrator Stanley found that the envloyerls expressed intention to reduce the amount of the percentage in lieu of benefits (12%) paid to casual, part-timet and temporary employees, in light of an uHJ..P payroL.l LdX introduced by the CiovenllneIlC of Ontario, 14 would constitute a violation of the collective agreement; and Re Alexandra Marine & General Hospital and O.N.A., supra, in which arbitrator Devlin found a similar violation where the employer unilaterally reduced the percentage in lieu of fringe benefits (14%) for part-time nurses who enrolled in the Hospitals of Ontario Pension Plan after part-time employees became eligible to participate in certain employer pension plans as a result of amendments to the Pension Benefits Act. Note 3 on pages 8-2 and 8-3 of Brown and Beatty, Canadian Labour Arbitration (3rd Ed.), includes the following as examples of benefits: life insurance, prescription plans, night recovery leave, OH1P premiums, U.1. premiums, indemnity for home study, Christmas bonuses, pension surpluses, retirement allowances, meeting allowances, child care allowances, layoff allowances, parking privileges, housing buy-back arrangements, railway passes, car allowances, personal leave, religious or special leave for non-traditional holidays, responsibility allowances, legal fees, professional dues, gratuities, moving expenses, locker or storage facilities, clothing allowances, tool allowance, and company cars. Although that list does not purport to be exhaustive or definitive regarding what is encompassed within the term Jlbenefitslf in a provision such as Article 5.02, it does provide examples of the broad range of items which may fall within the purview of that term. Article 25 of the Agreement is entitled tllnsured Benefits", and includes provisions regarding sick pay, life 15 insurance, a supplementary health and hospital plan, a vision and hearing care plan, a dental care plan, and a long-term disability plan. Those benefits are undoubtedly included within the ambit of the term "benefits" in Article 5.01. However, if the parties had intended to confine that term to those benefits, they could easily have done so by stating that "temporary employees shall receive 10 percent of base wages in lieu of holidays, vacation, and the benefits listed in Article 2511 (or perhaps more obliquely by using the phrase "insured benefits" or the phrase "regular fringe benefits" in Article 5.02). However, they did not do so. The term they used is "benefitsJl, which we construe to be a word of sufficient breadth to include the "special compensation entitlement on termination or death" for which the Letter of Understanding provides. In view of the foregoing conclusion that we have reached on the basis of Employer counsel's second argument, which we find to be determinative of the matter in issue, it is unnecessary for the Board to deal with the other arguments presented by counsel. For the foregoing reasons, the Board has concluded that OPACrs temporary employees are not entitled to receive special compensation payments under the Letter of Understanding. As agreed by the parties, we shall remain seized of the grievances for the purpose of deciding any other issues arising thereunder which the parties are unable La resolve. 16 DATED at Burlington, Ontario, this 30th day of April, 2001. ~~,~J~~ Robert D. Howe Chair I dissent [for the reasons contained in the attached Dissent] IIPamela Munt-Madill" Union Nominee I concur. IIRobert Gallivanll Employer Nominee 17 .' DISSENT With all due respect, I do not concur with the majorily's determination in this matter. I do not believe that the language of Article 5.02 can reasonably be seen to contemplate payment in compensation for termination of employment. Although arbitrators have given the term "benefit" a broad definition in articles like this, application to a situation of termination pay is distinguishable, Termination pay is not a benefit of the same nature as those listed in Article 5, I.e., holiday pay and vacations. Those and the other benefits referred to in the case law are benefits of employment which an employee enjoys during the term of their employment. It is these sorts of benefits that the payment referred to in Article 5.02 is being paid in lieu of. Termination pay Is not a benefit received during the term of employment. It is compensation for termination of that employment. The theoretical basis for the calculation of this payment is the amount of loss occasioned due to the termInation of the employment and the amount notionally required to sustain an individual until new employment Is found. It Is difficult to view such a payment as a "benefit" , Furthermore, none of the C$SeS referred to us during the course of the hearing contained any discussion of analysis of termination pay as a "benefit" or a finding that this type of payment should be so considered. For the above reasons, I would have found that the terminatIon pay at issue here is not a benefit contemplated by the language of Article 5.02 and would have allowed the grievance.