HomeMy WebLinkAboutKong et al 02-04-16
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IN THE MATTER OF AN ARBITRATION
RECEIVED
-04- 1 7 2002
o P S E U 0 0 NN S V I E W
BET WEE N
TORONTO EAST GENERAL AND ORTHOPAEDIC HOSPITAL INC.
(the Hospital)
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
AND ITS LOCAL 566
(the Union)
Grievances of S. Konq, M. Martiros and M. Chenq
BEFORE:
Stanley M. Beckl Arbitrator
APPEARANCES:
For the Hospital:
Peter F. Chauvin
Miller Thomson
For the Union:
Mary Anne Kuntz
District Grievance Officer, Toronto Region
Hearing:
March 26, 2002
This arbitration concerns the grievance of three employees
of the Toronto East General and Orthopaedic Hospital Inc. (the
Hospital) who are all members of the Ontario Public Service
Employees Union, Local 566 (the Union). The employees are Sue
Kong (Kong), Melina Martiros (Martiros) and Melanie Cheng (Cheng)
who all grieve that they were denied a supplemental employment
benefit (SUB benefit) for the full 35 weeks that they were in
receipt of Employment Insurance (EI) parental benefits. The
grievance is that Section 18:05(h) of the collective agreement
requires that a SUB be paid "while the employee is in receipt of
such [EI] benefits".
The case was argued on an agreed state~ent of facts (the
Facts). Paragraph 18 of the Facts reads as follows:
The issue in these three grievances is
whether the Grievors, who took both a
pregnancy leave and a parental leave, are
entitled to more than 10 weeks of SUB
payments during their parental leave, and if
so, how many additional weeks of SUB
payments.
The collective agreements with the Hospital start with the 1988-
1991 agreement which provided for a SUB that resulted in a top-
up, including EI payments, of 75% of regular weekly earnings. The
SUB was stated to Ucontinue while the employee is in receipt of
such benefits [EI] for a maximum period of fifteen (15) weeks".
fn thp 1991-1991 collective agreement, which was the result
2
of an interest arbitration[ both pregnancy leave and parental
leave were granted[ and both were to be "in accordance with the
provisions of the Employment Standards Act[ except where amended
by this provision", Pregnancy leave was for a maximum of 17
weeks, and parental leave was for a maximum of 11 weeks, for a
total of 28 weeks[ which was the then ESA provision. In both the
relevant pregnancy leave and parental leave clauses, the SUB was
said to "continue while the employee is in receipt of such (EI]
benefits". That is[ the maximum period of 15 weeks found in the
1988-1991 collective agreement no longer applied.
Under then Article 18:04(b)[ pregnancy leave was for a
maximum of 17 weeks and parental leave was for a maximum of 18
weeks, for a combined total of 35 weeks. And ESA[ from 1990 and
prior to December 31, 2000, provided for the same 17 weeks[
pregnancy leave and 18 weeks[ parental leave. The Federal
Employment Insurance Act, however, prior to December 31[ 2000[
provided for only 15 weeks of pregnancy leave benefits and only
10 weeks of parental leave benefits. Thus, the SUB payments were
limited, under the terms of the collective agreements with the
Hospital, to 15 weeks for pregnancy leave and 10 weeks for
parental leave to employees who took both the pregnancy and
parental leaves.
The collective agreement for the term April 1, 1999, to
March 31, 2002, which is the governing agreement tor this
3
grievance, contained one significant change. That was that the
SUB top-up was increased from 75% to 84%. A second significant
change occurred through a change in federal and Ontario
legislation, and the question in this grievance is what effect
those changes had, if any, on SUB payments for parental leave.
Effective December 31, 2000, the federal Employment Insurance Act
was amended to extend the time unemployment benefits were payable
to persons on parental leave from 10 weeks to 35 weeks. As of the
same date, the Ontario Employment Standards Act was similarly'
amended to increase the amount of parental leave from 18 weeks to
35 weeks (or 37 weeks if the person did not take pregnancy
leave). Accordingly, the combined pregnancy and parental leave
under ESA was now 17 weeks plus 35 weeks, for a total of 52 weeks
(with payment for 50 weeks given the two-week EX waiting period) .
Accordingly, the question for determination in this grievance is
whether those who take both a pregnancy leave and a parental
leave, as in the case of the grievors, are entitled to more than
10 weeks of SUB payments during their parental leave and, if so,
how many additional weeks of SUB payments.
One other fact needs to be noted. The parties agreed, and
there were filed at the arbitration, the current collective
agreements between the SEIU Service Employees in the Hospital,
the SEIU Office Employees in the Hospital, the agreement with
Para",Medical Professional Employees, and the ONA central
agreement which applies to the Hospital. Also filed, although
~
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they are not in force at the Hospital, were the current OPSEU
central agreement and the CUPE central agreement. In each one of
those agreements, there is a provision for maximum SUB payments
of 15 weeks for pregnancy leave and 10 weeks for parental leave.
That is, the relevant SUB clause in each of those nine agreements
has a limitation similar to what was in the 1988-1991 collective
agreement between the Hospital and the predecessor union, which
provided, in the case of an employee on maternity leave, .SUB
payments for an employee in receipt of EI pregnancy benefits "for
a maximum period of fifteen (15) weeks". As noted, that
limitation was taken out of the 1991-1993 collective agreements
and replaced with the words "shall continue while the employee is
in receipt of such benefits [EI] ", The question then reduces to
one of whether the amendments to the provincial ESA and the
federal EI Act, both effective D~cember 31, 2000, had the effect
of extending SUB benefits for a maximum of 50 weeks (taking into
account the two-week waiting period) under the collective
agreement.
It is important to begin with the actual terms of Articles
18:04 and 18:05 of the collective agreement. Article 18:04 reads,
in part, as follows:
5
Preqnancv Leave
(a) Pregnancy leave of absence will be
granted in accordance with the
provisions df the Emplovment Standards
Act[ except where amended by this
provision.
(b) An employee who is pregnant and who has
been employed for at least thirteen (13)
weeks immediately preceding the expected
date of birth shall be entitled, upon
her written application, to a pregnancy
leave of absence of a maximum of
seventeen (17) weeks from employment.
An employee entitled to pregnancy leave
of absence under Article 18:04 is also
entitled to parental leave of absence
under Article 18:05, such that a
pregnant employee is entitled to a
combined total of thirty-five (35)
weeks' leave of absence prior to and
after delivery.
Article 18:05 reads, in part, as follows:
Parental Leave
(a) Parental leave will be granted in
accordance with the provisions of the
Emplovment Standards Act, except where
amended by this provision.
(h) An employee who is on parental leave as
provided under this Agreement and who is
in receipt of Employment Insurance
parental benefits pursuant to the
Employment Insurance Act, shall be paid
a supplemental unemployment benefit.
That benefit will be equivalent to the
difference between eighty-four percent
(84%) of his or her regular weekly
earnings and the sum of her weekly
Employment Insurance benefits during the
leave and any other earnings. Such
payment shall commence following
completion ot the two (~) week
6
Employment Insurance waiting period, and
receipt by the Hospital of the
employee/s Employment Insurance cheque
stub as proof that she is in receipt of
Employment Insurance parental benefits
and shall continue while the employee is
in receipt of such benefits. The
employee's regular weekly earnings shall
be determined by multiplying her regular
hourly rate on her last day worked prior
to the commencement of the leave times
her normal weekly hours plus any wage
increase of salary increment that she
would be entitled to if she were not on
parental leave.
-(
The first thing to note about both Articles 18:04 and 18:05
is that both pregnancy leave and parental leave are to be granted
in accordance with the provisions of ESA, lIexcept where amended
by this provisionll. The second paragraph of 18:04{b) defines the
term of a parental leave, which works out to 18 weeks, such that
"a pregnant employee is entitled to a combined total of thirty-
five (35) weeks' leave of absence".
The critical words with respect to Article 18:05{h), which
deals with parental leave, which is the relevant issue in these
grievancesr are the opening words, "An employee who is on
parental leave as provided under this Agreement and who is in
receipt of Employment Insurance parental benefits pursuant to the
Employment Insurance Act, shall be paid a supplemental
unemployment benefit", and continues in the third sentence to
provide that the SUB shall continue "while the employee is in
receipt of such benefits [Ell ".
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Counsel for the Union noted that the condition of parental
leave under Article 18:05 is it is granted in accordance with the
provisions of ESA. And ESA now provides for 35 weeks' parental
leave, as does the EX Act. That being so, it was argued, an
employee who is on parental leave and is in receipt of EI
payments, is entitled to the SUB top-up of 84% as long as that
employee is in receipt of EI benefits. And that receipt period
can now extend for 50 weeks. And that is the period that ought to
apply to those of the grievors who took a full 52-week pregnancy
and parental leave. If leave were taken for a shorter period, and
the employee was in receipt of EI benefits during that period,
then that employee would be entitled to SUB payments for that
period.
Counsel for the Union emphasized that the terms of Article
18:04(b) I which define the term of pregnancy leave in the first
paragraph, and the term of parental leave in the second
paragraph, were not carried over into either Article 18:04(h) for
SUB benefits for pregnancy leave, or into Article 18:04(h) for
SUB benefits for parental leave. Rather, subparagraph (h) in each
case refers to an employee being on leave lias provided under this
Agreement", and who is in receipt of employment insurance,
continuing to receive the SUB payment while in receipt of such EI
benefits.
The collective agreement, it was argued, speaks of the ESA
8
as it is at any time; there is nothing to indicate that it was
frozen to the relevant periods under the ESA at the time the
collective agreement was entered into on April 1, 1999. Indeed,
it was argued that the Hospital was bound to give both pregnancy
leave and parental leave in accordance with the provisions of
ESA,as they might be at any time, as to provide otherwise would
be to contract out of a public policy statute. A greater right or
benefit might be granted under a collective agreement, but a
lesser one cannot.
~
Counsel for the Hospital emphasized that this case is about
the SUB granted under Article 18:05(h). It is not about ESA and
the parental leave granted under its terms which, he noted, the
Hospital has been giving ever since ,the amendment became
effective on December 31, 2000. Rather, it is about the period
during which the Hospital is obligated to pay the SUB top-up to
84% of regular weekly earnings. Indeed, he agreed that since the
EI Act now provides for 35 weeks of payment of benefits for
parental leave, rather than the previous 10, which was what
employees at the Hospital were receiving as SUB, they would now
be entitled to eight more weeksi that is, a total of 18 weeks of
SUB, as Article 18:04(b), second paragraph, provides for 18 weeks
of parental leave. And as an Itemployee who is on parental leave
as provided under this Agreement" would be entitled to 18 weeks,
and as, since the amendment to the EI Act effective December 31,
2000, such an employee would be in receipt of EI benefits for the
9
full 18 weeksJ that employee would be entitled to 18 weeks of
SUB. AccordinglYJ the grievors here would each be entitled to an
additional eight weeks.
He also emphasized that it is the language of a collective
agreement which governsJ not the language of ESAJ and noted
again, that the leaves granted by ESA were not being cut down by
the Hospital butJ in fact, were being complied with. That was not
the issue. The issue was one of what parental leave was "provided
under this Agreement", which is the qualifying term for receiving
SUB payments. And he submitted that that qualifying term must
refer back to Article 18:04(b), which provides, in the second
paragraph, for 18 weeks' parental leave (a total of 35 weeks'
leave of absenceJ less 17 weeks for pregnancy leave). That is the
parental leave provided "under this Agreement"J it was argued,
and the SUB payments have reference to that, and to that alone.
They do not have reference, it was argued, to the leave periods
granted under ESA.
The issue is an interesting one of interpretation, but on a
consideration of the argument of the parties and the wording of
the collective agreementJ I am of the opinion that the argument
of counsel for the Hospital must prevail. The opening words of
Article 18:05 are that parental leave will be granted !lin
accordance with the provisions of the E:mplovment Standards ActJ
except where amended. by t.his provisionll. As noted, trle collective
10
agreement cannot cut down the parental leave granted under ESA.
The collective agreement could, however, grant greater leave,
although that has not been done here, and the Hospital is now
granting a combined 52 weeks' leave of absence for pregnancy and
parental leave in accordance with the terms of ESA, and not in
accordance with the terms of Article 18:04(b), which terms no
longer comply with ESA. That being so, I am of the opinion that
the parental leave lias provided under this Agreementll is the
parental leave that is IIgranted in accordance with the provis.i,ons
of Employment St:i:lndards Actrr I and not as set out within the terms
of Article 18:04(b).
Counsel Of or the Union cited the decision of Arbitrator Gail
Brent in Re City of Toronto and Toronto Civic Employees Union,
Local 416 (2001) 98 L.A.C. (4th) 321 (Brent). The collective
agreement provided that pregnancy leave would be granted in
accordance with ESA, lias amended II . As noted, ESA was amended
effective December 31, 2000. In holding that the amended, and
increased, time periods applied, Arbitrator Brent held as
follows:
It is not unheard of for parties to have a
collective agreement provision which will
vary with the actions of something beyond
their control. For example, cost of living
adjustments may be tied to the Consumer Price
Index, or additional statutory holidays may
be added if a government 80 proclaims. There
is nothing in the collective agreement which
would lead me to conclude that the parties
necessarily w~rp limiting the benefi~ to whal
11
was in existence on the day the collective
agreement'came into effect. It may be that
neither of them contemplated that the
duration of parental leave would increase;
however, by referring to the Act as they have
they can be taken to have each assumed the
risk that the Act would be amended in a way
which was detrimental to their interests.
(pp. 325-326)
In so holding, Arbitrator Brent cited with approval the
unreported 1981 decision of Arbitrator Palmer in Re Ford Motor of
Canada Ltd. and U.A. W. :
The fact that the amendments to the
Unemployment Insurance Act, 1971 were not in
existence at the time the guaranteed wage
plan was negotiated does not mean they cannot
affect the operation of the plan. In a
general way, all such plans are subject to
such changes in the law and they must be
interpreted in light of such changes.
I am of the opinion that the rationale of the holdings in Re
City of Toronto, supra, and Ford Motor, supra, apply in this
case. It is appreciated that the collective agreement here does
not refer to ESA Has amendedH. But I do not think that that is
necessary to bring into play the holdings of Arbitrators Brent
and Palmer, supra. When ESA was referred to it was not to be
taken as frozen as to its terms at the date of the collective
agreement. ESA is a public benefits statute and there was always
the possibility that the time periods would be increased,
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12
but that was not done. The SUB subsection, 18:05(h), refers to
II . . . parental leave. as provided under this Agreement ". And the
Agreement provides for parental leave lIin accordance with the
provisions of the Employment Standards Act". As ESA [and El] has
been amended, the SUB payments continue for as long as the
grievors are in receipt of El benefits.
Finally, as I have noted, the clause, "except where amended
by this provision", refers to the leave standards under ESA, and
such an amendment can 6nly increase those terms and provide a
greater benefit, it cannot provide for a lesser benefit. And the
Hospital cannot use that clause to keep alive the second
paragraph of Article 18:04(b) to limit. the payments of SUB under
Article 18:05(h). That is simply not the way the collective
agreement reads.
Accordingly, 'the grievance is allowed, and the grievors are
to be paid SUB payments for the period of time that they were on
parental leave and in receipt of EI benefits. If there is any
problem with the implementation or interpretation of this Award,
I will remain seized of the matter.
DATED at TORONTO this 16th day of April, 2002.
~~"
Stanley M. Beck, Arbitrator