HomeMy WebLinkAbout2010-1947.Policy.11-10-06 DecisionCommission de
Crown Employees
Grievance
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Settlement Board
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GSB#2010-1947
Union# G-16-10 Policy
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Amalgamated Transit Union - Local 1587
(Policy)
Union
- and -
The Crown in Right of Ontario
(Metrolinx - GO Transit)
Employer
BEFOREVice-Chair
Barry B. Fisher
FOR THE UNION
Ian Fellows
Green & Chercover
Counsel
FOR THE EMPLOYER
Sven Poysa
Osler, Hoskin & Harcourt LLP
Counsel
HEARING
July 26, 2011.
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Decision
[1]This case involves the application of issue estoppel with respect to certain pension
contributions involving full time employees on short, unpaid, non-statutory leaves. (Leaves in
Question)
[2]The Agreed Statement of facts are appended to this award.
[3]In essence, before OMERS corrected the existing situation, employees paid only their
portion of the contribution for these Leaves in Question, whereas after the OMERS correction,
employees were required to pay both their own DQGWKH(PSOR\HU¶VFRQWULEXWLRQLIWKH\ZDQWHG
the pension service credit. However they could elect not to buy back this service and thereby
avoid paying any contribution.
[4]Certain aspects of the OMERS plan are important to understand:
1)The OMERS Plan is imposed by statute on these parties. It is not collectively bargained.
Therefore the parties have no input into the terms of the OMERS Plan.
2)Neither this Employer nor this Union is part of the joint OMERS Board.
3)The only relevant reference to pensions in the Collective Agreement is the sentence
contained in the Wage Article ( 39.4(1) ) whLFKVWDWHV³3HQVLRQFRntributions will be
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4)The provision in question in the OMERS Primary Pension Plan is a publically available
document, readily accessible to both the Employer and the Union.
5)OMERS changes its pension plan on a regular basis with the effect that the pension plan
involving these employees could be changed without their consent and during the term of
an existing collective agreement.
[5] The GSB jurisprudence on estoppel is clearly set out in Vice Chair Gray decision in
Ministry of Health and LTC v OPSEU dated July 23, 2007 , reported at 90 C.L.A.S. 141, where
he states the criteria for estoppel are as follows:
³7KLV%RDUGGLIIHUHQWO\FRQVWLWXWHG
GHVFULEHd estoppel in Brown, 0513/86 (Barrett), at pages 6-
8 (as quoted in Hawke, 870/90 (Fisher), at pages 3 and 4:
1.The Party with the contractual right makes a representation to the other party that it
will not be insisting on strict compliance with that right. The representation need not
be expressed but can be implied from the conduct of the party making it. The conduct
gives rise to an estoppel only where it leads the promise reasonably to believe that an
undertaking was being given.
2.The representation relied upon must be clear and unequivocal. Conductwhich is
ambiguous or subject to a number of conflicting interpretations cannot form the basis
of an estoppel.
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3.The promise must be one that is voluntarily given, not extracted by force or coercion.
4.The promise must be one which was intended, or was reasonably construed as being
intended to affect the legal relations between the parties. A person may well grant an
indulgence without ever intending to forego his strict legal rights. The promisor is not
estopped from relying on terms which in the past have not been enforced through
error or inadvertence.
5.The person relying on estoppel must show that he altered his position on the strength
of the promise or representation that was made. An alteration of position may take
the form of a positive act or that of an omission. It is sufficient the promisee has be
induced to conduct himself differently than he otherwise would have done. Such
conduct must be shown however to have been in reliance on the promise. In the
labour relations context reliance may take the form of forebearing to raise an issue at
the bargaining table which but for the promise would otherwise have been raised.
6.It must be shown that the alteration of position by the promisee was to his detriment
or prejudice.
In essence the object of the doctrine is to prevent a party from acting in a manner
inconsistent with an express or implied promise, when to do so would be
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[6] Looking at the first criteria, in order for the Union to rely on the issue estoppel argument
they must first prove that they were led to believe that certain rights within the Collective
Agreement would not be relied upon by the Employer.
[7] Where does this Collective Agreement deal with the issue of who makes the pension
contribution for Leaves in Question? The answer is that the collective agreement does not
mention or refer to this topic at all, nor does it refer to any of the myriad of complex pension
issues in the OMERS plan. In fact the only reference to OMERS seems to be in Schedule B
where the provision of retiree benefits are linked to receiving OMERS retirement income. This
is understandable given that the OMERS regime was imposed by statute and therefore is not part
of this collective bargaining arena.
[8] The one reference in Article 39.4 (1) about pension contributions being deducted from
regular earnings simply does not come close to dealing with issue of who pays the employers
contribution for Leaves in Question.
[9] The conduct of the Employer satisfies both criteria 2 and 3.
[10] The fourth criteria makes reference to the fact that the promisor (in this case the
Employer) is not estopped from asserting those rights which were in the past not enforced due to
error. In this case it is agreed that the application of the leave provisions was clearly done in
error by the Employer.
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[11] With respect to the fifth criteria, the Union cannot say that if it had known of this change
that it would have negotiated a change to the pension plan, however it has said that if it knew that
this change would save the Employer money, they would have negotiated some other way of
getting that money back into the pockets of their members. This assertion makes labour relations
sense. The sixth criteria would also seem to be covered.
[12] As summarized in the last sentence of the quote, the real point of the doctrine of estoppel
is to avoid what would otherwise be unconscionable. Therefore, it is proper to ask whether or not
the actions of the Employer are unconscionable, remembering the following matters.
1)The mistake in administering the OMERS plan arose from an innocent misunderstanding
of the terms of the OMERS plan, which was equally accessible to both contracting
parties. In other words these rules are set by a third party, not one of the parties to the
Collective agreement.
2)The new rule does not cost employees any more money as they can opt out of its
application. In fact, under the new rule the member can also avoid paying his or her side
of the pension contribution by opting not to buy back their service. This would actually
increase their take home pay. In fact only 2.5% of the members opted to buy back their
service under the new application of the rule, and thus 97.5 % of the members opted to
increase their take home pay.
3)This rule is of general application throughout the OMERS pension world, which,
according to their website, have over 400,000 members. How could it be unconscionable
to treat these 1200 employees differently that the 398,800 other members of the same
plan?
[13] In conclusion I find that the Union has not established that estoppel applies to this
situation as it has not established that it met the criteria set out in the GSB case referred to above
and for the overriding reason that the result is not at all unconscionable.
[14] The grievance is therefore dismissed.
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Dated at Toronto this 6 day of October 2011.
Barry B. Fisher, Vice-Chair
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