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HomeMy WebLinkAboutAllison Group 11-06-09 ',""j ..: -. _v IN THE MA TIER OF AN ARBITRATION BETWEEN: COMPLEX SERVICES INC. C.O.B. AS NIAGARA CASINO (the "Employer") -and- ONTARIO PUBLIC SERVICE EMPLOYEES UNION ON BEHALF OF ITS LOCAL 278 (the "Union") AND IN THE MATTER OF A GRIEVANCE REGARDING PENSION' CONTRIBUTIONS Board of Arbitration Louisa M. Davie Pamela Munt-Madill Judith Rundle Chair Union Nominee Employer Nominee Appearances For the Union: .Ed Holmes, Counsel For the Employer: Simon Mortimer, Counsel 1 \ . l 2 Award Overview In this grievance the Ontario Public Service Employees Union (lithe Union") asserts that Complex Services, carrying on business as Niagara Cas~no (lithe Employer") has violated the collective agreement by failing to make "pension plan contributions on vacation time pay. II The facts are not in dispute. The grievance is dated April 7, 2009. It was filed under a collective agreement effective from April 1, 2006 to March 31, 2009. The current collective agreement is effective from April 1, 2009 to March 31, 2012. That collective agreement was ratified on July 29, 2009. We do not have any evidence with respect to the negotiations for that collective agreement beyond an agreed fact that during those negotiations the parties did not agree whether the collective agreement required the Employer to make pension contributions on vacation pay. The relevant language of the collective agreement which addresses this issue was not changed during those negotiations. IIf'IIt The obligation to make pension contributions on behalf of employees has always been in the collective agreement between the parties. It is not disputed that the Employer has never made pension contributions on vacation pay. f 3 We received into evidence various earnings statements. These earnings statements are received by all employees and spe~ify the employee's "earnings". and "deductions". Included under "earnings" are columns for "regular", "VTO hoursU, and "PTO hours", each followed by a specified rate and number of hours. (The collective agreement defines VTO as vacation time off and PTO as personal time off.) In addition to the standard statutory deductions for income tax, CPP, and EI, the "deductions" portion of the statement includes deductions for "regular pension plan" and "Union dues." It is agreed that vacation pay is paid on an employee's gross regular wages for the prior year, not including vacation paid. That is to say there is no dispute that employees do not receive vacation pay on vacation pay. It is also not disputed that "regular hourly pay earned" which is critical to this dispute is not defmed in the collective agreement. The Collective Agreement With respect to pensions, article 25.03 of the collective agreement states: 25.03 The Employer will provide the base contribution of three percent (3%) on all regular hourly pay earned. The Employer will match up to an additional three percent (3%) of regular hourly pay if the employee chooses to contribute. (emphasis added) With respect to vacation, article 22 ofthe collective agreement provides: 22.01 On January 1st of each year, full-time employees with less than five (5) years of service will be granted, as an advance, up to eighty (80) hours of paid vacation time off ("VTO") less any paid VTO used but not earned the previous calendar year. Previous calendar year VTO earnings are based upon four percent (4%) of such employee's gross regular wages for that prior year. 22.02 Active full-time employees with five (5) years of service or greater will be granted, as an advance, up.to one hundred and twenty (120) t - 1: 4 hours of paid VTO on January I St of each year. This latter paid VTO grant may also be adjusted if the employee used more paid VTO than was earned the previous calendar year: Previous calendar year VTO earnings in this circumstance are based upon six percent (6%) of such employee's gross regular wages for that year. 22.03 Active full-time employees with ten (10) years of service or greater will be granted, as an advance, up to one hundred and sixty (160) hours of paid VTO on January 1 st of each year. This latter paid VTO grant may also be adjusted if the employee used more paid VTO than was earned the previous calendar year. Previous calendar year VTO earnings in this circumstance are based upon eight percent (8%) of such employee's gross regular wages for that year. 22.06 Employees must take their vacation each year. Unused earned paid VTO balances as of December 31 st of each year will be paid out. Vacation must be scheduled in one (1) week blocks save and except that up to forty (40) hours of earned vacation time may be scheduled in individual days, subject to availability and operational requirements. 22.07 Regardless of paid VTO available, employees with less than one (1) year of service shall receive one (1) week vacation time, employees with greater than one (1) but less than five (5) years service will receive two (2) weeks vacation time, and employees with five (5) years of service or mOTe will receive three (3) weeks vacation time. 22.10 An employee who leaves employment with the Employer for any reason prior to earning his or her advanced VTO agrees that any unearned portion used will be owing to the Employer and may be deducted from his wages. In its submissions regarding the appropriate interpretation of the Employer's obligation, the Union placed emphasis. on the word lIearnedll in article 25.03 (and "earnings1f and "earned" as used throughout article 22) to argue that the collective agreement required .. 5 the Employer to make pension contributions on vacation pay earned by, and paid to, employees. The Union seeks a declaration to that effect. The Union also seeks an order requiring the Employer to make the requisite pension contributions from the date of the grievance onward. In the alternative, and in response to the Employer's arguments of estoppel, the Union argued that any estoppel was brought to an end on the date the current collective agreement was executed in July 2009. The Employer had been put on notice with the filing of the grievance that the Union sought to rely on its strict rights. In the further alternative the Union submitted that any estoppel would end with the expiration of the current collective agreement. For its part the Employer placed emphasis on the words "regular hourly pay" to assert that paid VTO provided to the employee under article 22.01 was not "regular hourly pay" and therefore did not attract an obligation to make pension contributions under article 25.03. In addition the Employer submitted that by its conduct the Union is now estopped from seeking pension contributions on paid VTO. For many years the Employer has consistently and openly maintained its practice that it did'not make pension contributions on paid VTO. This long-standing practice was known, or should have been known, to the Union and the employees, particularly as it was clearly indicated on the earnings statements received by all employees. Prior to April 2009 the Union had not complained about this practice. The Employer relied on the Union's failure to complain about this practice to its detriment in negotiations when it agreed to monetary demands on the understanding that the cost associated with its pension contributions did not include pension contributions on paid VTO. The Employer would not have agreed to various '; 6 monetary demands if it had known that its costs would be increased by a Union claim for additional pension contributions. In the circumstances, filing"a grievance was not sufficient to end the estoppel. The Employer submitt;ed that the estoppel could . only come to an end with the expiration of the current collective agre~ment. The Submissions of the Parties Union counsel stated that article 25.03 does not require pension contributions on the basis of hours worked. Rather, contributions are based on hourly pay "earned." It was sub~tted that regular hourly pay can be earned in a variety of ways: by working scheduled hours, or as a result of using vacation credits and receipt of earned pay associated with the use of those credits, or as a result of such statutory or collective agreement obligations as pay received for statutory holidays or while on bereavement leave. It was emphasized that vacation, or paid VTO, is "earned" by the employee. The Union submitted that it was clear from the language of article 22.01 that paid VTO was "regular hourly pay earned". Employees were granted, upfront, paid hours of vacation time off. Article 22 indicates that the employees have to "earn" their paid vacation time' off. Moreover, when they use their earned, paid vacation, employees are paid their regular hourly pay. The Union noted that i.p. this collective agreement, as in most, senior employees are granted greater amounts of vacation with pay than junior employees. The effect of the Employer's interpretation that pension contributions are not required to be made on paid . ~ ., T VTO therefore means that senior employees who are entitled to, and who take, more vacation receive less pension contributions than junior employees. AIO-year employee entitled to 120 hours of paid VTO would lose pension contributions on 40 hours that the . junior employee only entitled to 80 hours of paid VTO receives. Union counsel submitted that seniority is important and the benefits' associated with seniority should not be negatively impacted unless collective agreement language clearly requires that result. Here it would be an absurd result to conclude the parties intended that senior employees receive less pension contributions than junior employees . Union counsel also noted that a review of the earnings statements indicated that pension contributions were made on statutory holidays, another benefit "earned" by employees, and another day for which employees receive "regular hourly pay" notwithstanding an absence from work. Similarly, the earnings statements indicated that in addition to union dues deducted from re~ar pay, union dues are also deducted from ~e VTO pay received by employees when th~y take their vacation, and from statutory holidays, lieu days etc. The collective agreement language requiring dues deductions states that the "Employer shall deduct from each regular pay of each employee..." That language closely resembles .the language of article 25.03. The fact that vacation pay was treated as regular pay of each employee for purposes of union dues deduction supported the Union's position that earned paid VTO was equivalent to regular hourly pay earned as that term is used in article 25.03. ~ ~. ;' 8 Employer counsel submitted that the collective agreement before us does not simply use the word "earnings" or "earned" remuneration in specifying that which attracts the 3% pension contribution. "Earned" remuneration under article 25.03 is further and specifically defined through a reference to "regular hourly pay". From the Employer's perspective the issue is whether we can conclude that paid VTO is "regular hourly pay earned." The Employer asserted that paid VTO is not lIearned" but is "granted, as an advance" on January 1 st of each year. It was argued that something which is granted as an advance is not the same as something which has been "earned." At best a granted adv~ce is something yet to be earned. Thus, the employee who uses the 80 hours of paid VTO granted to him on January 1st in January has not yet "earned" that paid VTO. If that employee subsequently quits, the employee's final pay will be reduced by the amount of paid VTO taken in January precisely because the employee had been granted, but had not earned, the paid VTO. Having been granted an advance of paid VTO hours at the start of the year, article 22.01 then speaks to the amount of money which the employee will receive which is associated with that paid VTO. Again, that money need not necessarily be the same as the employees "regular hourly pay" because article 22 specifies that the amount of VTO earnings is based on a percentage of the employee's gross regular wages earned in the previous year. By reason of the unique "vacation with pay" system specified in the collective agreement the employee granted 80 hours of paid VTO on January 1st may not 9 actually receive 80 hours of regular hourly pay when they take their vacation if, for example, the employee had a three-month absence in the prior year. Then, although the employee may r.eceive 80 hours paid VTO, the pay associated with that time would be less than 80 hours of their regular hourly pay. Paid VTO may be further reduced by paid vacation time off taken but not earned in the previous year. The employee absent on a lengthy leave of absence in a particular year may not have had the opportunity to "earn" the vacation paid and taken in the prior year and, as a result, will find hislher paid VTO in the subsequent year reduced. Similarly, Employer counsel pointed to the fact that under article 22.06 employees are paid out any paid VTO which they do not take. Under this collective agreement it is possible for employees to receive 54 or more weeks of pay. .For example an employee entitled to 160 hours of paid VTO who takes only two weeks (80 hours) ofpaiq vacation would ultimately received 54 weeks pay as the unused 80 hours of VTO is paid out. It was argued that this circumstance also highlights the fact that paid VTO is not the same as, or similar to, regular hourly pay. It was submitted that paid VTO was a unique concept under this collective agreement and could not be said to equate to regular hourly pay earned. The calCUlation of paid VTO did not necessarily relate to the number of paid hours employees were able to be away . from work each year. Rather it was a grant or advance, unique to each employee, because it was based on the previous year's earnings and the previous year's vacation 10 usage. The fact that it could be different for each employee also distinguished it from "regular hourly pay": Decision We have carefully considered the submissions of the parties and have concluded that, on balance, article 25.03 requires the Employer to make pension contributions on paid VTO earned by, and provided to, employees. We have come to this conclusion notwithstanding the abl~ and persuasive submissions made on behalf of the Employer. On balance we are persuaded that paid VTO is "regular hourly pay earned" when it is received by the employee. As a result the pension contribution must be made when the employee uses his/her paid hours ofVTO and receives his/her regular hourly pay during that vacation time off. We have determined that a payout of unused VTO on December 31st does not attract a pension contribution. A VTO payout is not "regular hourly pay" because that would mean the employee "earned" more than 52 weeks of pay in a year. We note that article 25.03 requires pension contributions on hourly pay earned by the employee and not on hours worked by the employee. Pension contributions are also not based on "remuneration" received by an employee, but on hourly pay earned. We accept that the reference to "regular hourly pay" does indicate that not all pay earned and received by the employee necessarily attracts pension contribution. For example, premium pay may not fall within the f1regular hourly payl1 definition. However, in our view, the language of article 25.03 is broad enough to include the paid hours ofVTO specified in article 22 because VTO is "earned" by the employee, and, when used by the 'J' 11 employee during their vacation time off, represents "regular hourly pay" paid to them by the Employer. When article 22 is read in its entirety it is evident that the vacation pay is "earned" by the employee. The article is replete with references to "earned" paid VTO, used but not yet "earned" VTO, and unused but "earned" VTO (which must be paid out). We accept that "earnings" and "earned pay" is a broad concept which encompasses more than simply wages or hourly pay. There is now a significant body of jurisprudence which. supports the view that "earnings" includes vacation pay and statutory holiday pay. The jurisprudence also supports the Union's position that paid vacation is generally considered an "earned" benefit. Under the paid vacation system set out in this collective agreement, employees are granted, upfront, a certain number of hours of paid vacation time off. Ultimately however employees must earn that paid vacation. When the employees use their paid VTO hours and take vacation, notwithstanding an absence from work, the employees continue to receive pay which they have earned. On January 1 st when the employees receive their grant of paid VTO they are receiving a benefit which they will earn, and, when they use their earned paid VTO to absent themselves from work they continue to receive the same hourly rate of pay. The earnings statements tendered as exhibits indicate that the "rate" for VTO hours paid to employees when they are absent from work is .the same as the employee's "regular hourly" rate. ,.. !r 12 We do not agree with the Employer's submissions that paid VTO is not equivalent to regular hourly pay because the method for calculating the amount of money associated with the paid VTO hours mayor may not relate to the number of paid hours of vacation an employee may be away from work each year. In this regard the Employer relied upon, for example, the fact that an employee absent for significant amounts of time in a prior year may not receive 80 hours of paid VTO, as in such circumstances 4% of the employee's "gross regular wages for that prior year" may not equal 80 hours o~regular pay. The language and structure of article 22 indicates that on January 1st employees receive a grant of 80, 120 or 160 paid hours ofVTO. That is dealt with in the first sentence of the article. The second .sentence then indicates that the paid hours of VTO that employees receive may be ~'adjusted" if. in the past, they have received more paid VTO than they earned. In effect, the article simply provides for a way in which an overpayment of paid VTO may be recovered. T~ the extent employees may use more than the benefit of paid VTO hours to which they are entitled, article 22 provides for different methods by which employees may pay back that excess benefit. Thus employees who take paid vacation time off having not yet earned that benefit, and who subsequently quit, will have to pay back the paid vacation used but not earned. This is done through deduction from their' fmal pay (article 22.10). Employees who use their grant of paid VTO but who are absent from work for a prolonged period of time and who therefore do not have the opportunity to earn the paid VTO they have used are required to offset that used but unearned VTO against their' entitlement to paid VTO in the subsequent year. The fact that the collec:tive .: 13 agreement provides for methods by which the Employer can recover unearned paid vacation time granted to employees is not inconsistent with the notion that paid VTO is earned hourly pay. These methods of recovering an overpayment of paid VTO do not detract from the fact that employees are granted 80, 120 or 160 paid hours to use for vacation imrposes, or that they must earn those paid hours Finally, we agree that the Employer's interpretation does lead to the absurd result that senior employees receive less pension contributions than junior employees. Although a board of arbitration does not have jurisdiction to relieve against an ill considered bargain agreed upon by the parties, absurd results of this nature should be avoided unless the language of the collective agreement clearly intends such a result. That clear language is not present in this case. Having interpreted the language of the collective agreement we turn to address the estoppel issue. There is no dispute that the Employer's practice bas been open and consistent. For many years, and without complaint from the Union, the Employer bas not made .pension contributions on paid VTO hours. The Employer's practice has been applied to all bargaining unit members, including the union representatives at the workplace. This open practice was documented on each earnings statement received by employees which indicated that pension contributions were not being made on paid VTO hours. In these circumstances knowledge of the practice is imputed to the Union. Its failure to object to ., ,.. p 14 the Employer's conduct is a representation which permitted the Employer to assume that its interpretation and application of the collective agreement was appropriate. In the circumstances the Union's failure to complain represented to the Employer that it was not required to make pension contributions on paid VTO hours. The Employer relied on that conduct in costing its monetary obligations in the negotiation of successive collective agreements. We accept that the Employer would have acted differently in negotiating monetary items had it known that its costs would be increased by an obligation to plake pension contributions on paid VTO. Employer counsel submitted that in their negotiations the Employer agreed to increase the amount of its pension contribution from 2% to 3%, something which it would have viewed differently had the Employer known that pension contribution was to be applied to paid VTO. The Union did not dispute this, nor did it offer any evidence or explanation that this negotiated increase was a trade off for some other negotiated item. We therefore agree that the Union is estopped from insisting upon pension contributions on paid VTO. The more difficult issue is when does that estoppel end? The Union argued that the estoppel ended with.the filing of the grievance. It was submitted that at the time the current collective agreement was negotiated the Employer was aware that the Union sought pension contributions on paid VTO. Thereafter the Employer had an opportu1lity to bargain about the issue. The Union asserted that because .!.... ~.... 15 it had filed a grievance which put in issue the interpretation of the Employer's obligations under the collective agreement before the current collective agreement was concluded, our award which determines that issue flows through to the current and subsequent agreements unless the language is changed. It was the Union's position that it was not obliged to negotiate about language which it considered sufficient to oblige the Employer to make a 3% pension contribution on paid VTO. The Union also submitted that once the collective agreement has been interpreted in its favour, a practice contrary to the clear language of the agreement should not be permitted to continue. The Union argued in the alternative that the estoppel came to an end in July 2009 when the current collective agreement was ratified. In the further alternative the Union submitted that the estoppel will end when the current collective agreement expires. The Employer argued that it had clearly indicated to the Union that it disagreed with the Union's interpretation of its pension contributions obligation. IIi these circumstances, and given the lengthy practice of the Employer, it was not sufficient for the Union to merely file a grievance to bring the estoppel to an end. Rather, it was incumbent on the Union to address the matter at the bargaining table. The mere filing of the grievance was not effective notice to bring the estoppel to an end. With respect to the appropriate remedial relief the Employer also relied upon specific collective agreement language which states as follows: . 1.02 This Agreement is the full agreement between the parties and there are no representations, practices or warranties made prior to the ratification of this collective agreement which add to, interpret or ~ 16 create any rights or obligations which are not expressly stated or contained herein. 29.01 The parties agree that the term of this third collective agreement shall be from Aprill, 2009 to March 31, 2012. The effective date of all provisions or terms of this collective agreement shall be the date of ratification. Neither party will rely upon, apply or seek to enforce any provision or term for the time period prior to ratification. The Employer asserted that the grievance before us was filed under the 2006 - 2009 collective agreement. Article 29.01 indicates that the current collective agreement did not become effective until the date of ratification. The Union could not seek to enforce any of the provisions of the current collective agreement prior to the date of ratification. At the time of ratification the Union knew that the Employer did not agree that pension contributions were required to be made in respect of paid VTO and knew of the Employer's long-standing practice with respect to this issue. In light of article 1.02 and 29.01, the Union was required to file a grievance under the current collective agreement if it wanted to enforce a right to pension contributions on paid VTO. Estoppel comes to an end upon the giving of such notice as is reasonable and equitable in all the circumstances. How long the estoppel lasts depends on the facts. Where, as here, the estoppel is based on conduct revolving around collective agreement language which may. not be obviously inconsistent with a practice those facts should include consideration of the context i.e. the nature of the practice which gave rise to the estoppel, how long that practice has existed, the nature and type of notice given by the party to end the estoppel, including the time at which notice was given and the dynamics of collective bargaining if notice is given during bargaining etc. .:. ,:, 17 In the particular and unique circumstances of this case, and in the face of article 1.02, read in conjunction with article 29.01, we are not persuaded that the filing of the April 2009 grievance was sufficient or effective notice to bring the estoppel to an end: Prom our perspective this case is somewhat unusual. Prom the start of the collective bargaining relationship with the Union the Employer has been required to make pension contributions on "regular hourly pay earned" and, from the very beginning, the Employer never made such contribution on paid VTO. In April 2009, with the filing of the grievance, it became clear that the parties joined issue on the interpretation of article 25.03. However unlike many estoppel cases this not a case where "clear and unambiguous" collective agreement language conflicted with an Employer practice. Instead, here the language of the collective agreement was open to interpretation. Certainly the Employer had a "prima facie" case that its interpretation of article 25.03, consistent with its long~standing practice, did not require pension contribution on paid VTO. We have concluded that in these circumstance~ the filing of the grievance was not ~o much notice that an estoppel was being brought to an end as it was notice that the parties had conflicting interpretations of the contractua1language and the Employer's obligations under the collective agreement which would have to be determined at arbitration. Similarly, because the parties each had a prima facie case that their respe~tive interpretation of article 25.03 was correct, much like the Union, the Employer could also ..;\ 18 take the position that it was not obliged to negotiate new language in the collective agreement to obtain what it reasonably considered it already had. Although on balance we have preferred the Union's interpretation of article 25.03, .the Employer's position with respect to the interpretation of that article was not without merit. If the Employer's interpretation had been accepted, there was no need for the Employer to negotiate new language. We accept that often the filing of a grievance will be sufficient to end an estoppel at the time when the parties next engage in collective bargaining negotiations to renew their collective agreement. Again, however, the facts before us are somewhat unique. In this case there was a long-standing practice, consistently applied since the fIrst day of the collective bargaining relationship between these parties. As a result of the Union's conduct the Employer could reasonably conclude that its interpretation and application of what su~sequently turned out to be disputed language was correct. Here the grievance was filed a week after the collective agreement had expired, although, admittediy, prior to the effective date of the new collective agreement. Significantly, however, it is unclear from the facts before us that during their negotiations there was full opportunity to bargain about the issue. In the exceptional facts of this case, where the parties each had a prima facie case that their respective interpretation of article 25.03 was correct, and where we do not have any evidence that there was a full opportunity to engage in collective bargaining with respect to the matt<::r raised in the grievance, we are unable to conclude that the filing of the <: It ~ 19 grievance, or tlIe failure of the Employer to negotiate new language in. the face of that grievance, adversely affects the Employer's claim to, and reliance upon, ~stoppe1. To do so means that we would have to conclude that, in effect, the Employer was required to forfeit its position and agree with the Union's interpretation of the disputed language. We would have to conclude that because the Union filed a grievance a week after the collective agreement expired, but before the new agreement became effective or was ratified, the Employer was forced to accept the Union's interpretation of the disputed language before the matter had been adjudicated although it is not clear from the facts that there was full opportunity to bargain about the matter. It must be remembered also that one of the factors to which the Employer points as detrimental reliance is a negotiated increase to the amount of pension contribution from 2% to 3%. We should not be taken to say that the Union could not have given reasonable and effective notice to end the estoppel before the grievance was determined and this award was issued. We have concluded only that given the unique facts of this case the mere filing of the grievance did not constitute effective notice. We do not have any evidence that the Union provided any other type of notice, and we do not have any evidence of the negotiations following the filing of the grievance and what, if anything may have been said at the bargaining table. In the result> although we have found in favor of the Union's interpretation, we have concluded that the Union is estopped from enforcing that interpretation until the expiration of the current collective agreement. ..' ,- t ..: 20 Dated at Mississauga, this 9th day of June, ~O 11 ~ AJ~ · I dissenW 8€lRffiir dissent attached -"Judith Rundle" Judith Rundle I €ii3s8ntII concur "Pamela Munt-Madilf' Pamela Munt-Madill ,'" . 11 "" .1. With respect, I dissent on the majority's interpretation of the Collective Agreement with respect to Articles 22 and 25. 2. The majority failed to recognize that the primaxy issue, in this case, as between these two articles directly. raises questions of entitlement and obligations under the Collective Agreement. 3. Article 22 of the Collective Agreement sets out the qualifYing entitlement f?r vacation leaves and vacation pay. The qualifying language used is "paid vacation time off (VTO)". This Article clearly sets out that "VTO" is "earned", the amount of vacation pay is a percentage calculation based on earnings of the previous year. There must be clear language in this article to import the interpretation the majority has found. The .majorityinserts words such as "Pay received" and invents a notion of attraction in order to conclude that the calculation of pension contribution includes all vacation pay earned under this Arjicle. There is no such language in the Collective Agreement. 4. In Article 22 there is clear language that vacation pay is based on an employees' "gross regular wages" and it is upon this basis that the payout of vacation hours is determined. The adjustment language in Articles 22:06, 22:07 and 22:10 simply provides for what would be paid in a situation where. the credited "VTO" has in fact not been fully earned through }foUrs of work at the time the vacation absence commences. 5. The majority failed to appreciate that Article 22 .and Article 25 are separate and distinct Articles. Article 22 is intended to confer eligibility and entitlement to an employee for a vacation benefit, whereas Article 25 directs that base pension contributions must be made on "regular hourly pay" . 6. The language in Article 25 does not refer to "wages received" as the majority find. The actual concept in Article 25 of regular hourly pay earned refers to "wages earned" not a different notion of actual "wages received". There is no language in this Article to support the majority's finding. ',:.. "'*. c. yo 7. Clearly the entitlements and obligations with regard to vacation b~efits and pension contributions result in different and distinct amounts being granted. What the majority has erroneously concluded is that the VTO specified in Article 22, is somehdw linked to "hourly pay earned". by the fact that the employee receives a continuation of salary durirtg the vacation time off. As previously stated, these Articles are separate and distinct and 14e action of receivIng and using vacation cannot be applied as a nexus to pension contribution calculations intended to be based on earned wages. Furthennore, the word "earned" that appears in Article 22 means the VTO entitled to is a function of service provided by the employee. It was never intended to be used as a linkage to the' wording in Article 25. The employer's chbice, for administrative convenience to provide payout, of whatever VTa has been accumulated, by salary continuation is leading the majority to its erroneous linkage of these Articles. 8. There is nothing in the wording of this Collective Agreement, from which we receive our jurisdiction, to find that the benefit under Article 22 "attracts" pension contributions. The notion of "attraction" as between these two articles is an unusual and novel interpretation by the majority given the clear and direct language under the two distinct and separate Articles. Article 22 applies to employee entitlement to VTO, whereas Article 25 refers to an employer responsibility to put aside money for pensionable service. 9. The case law provided by the parties is of little service. Although not determinative, it is important to note that these parties have agreed to and have been applying this language in a consistent manner, consistent with the employer's current argument for a significant period of time. The Trade Union now requests something different. This divergence from this practice is a serious matter and we should be careful to avoid amendment to the language of the Collective Agreement as we have no jurisdiction to do so. The majority has constructed new language that divorces the payment .for VTa earned from its source in the previous year's earnings (3 tiered percentage calculation tied to accumulation of service). 10. I concur with the majority's approach to estoppel. ...... .....':,; 1"0 l.. 11. In conclusion, from the language the parties have agreed to, it becomes clear that the "calculations and/or sympathy" arguments are simply "red herrings" and should not have been endorsed by the majority. These arguments have no credence in the issue of '"pay earned" versus "hours paid". The latter is entitlement under a specific section of the Collective Agreement agreed to by the parties while the former is remuneration for "~ork perfdrmed for the employer" and does not include '"bonus entitlements" as the Trade Union would bavd this panel accept 12. I would dismiss the grievance. ~