HomeMy WebLinkAbout1975-0009.Irwin.76-02-109175
CROWN EMPLOYEES
GRIEVANCE SETTLEMENT
416/965/1410
BOARD M?A 125
IN THE MATTER OF AN ARBITRATION
Under The
CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: Mr. R. Irwin
And
The Ministry of Health
(Hamilton Psychiatric Hospital)
Before: D.M. Beatty - Chairman
G.K. Griffin - Member
P.A. Sigurdson - Member
For the Grievor
(The Grievor)
(The Employer)
; Mr. S. Goudge~ - Counsel
Ontario Public Service Employees Union
For the Employer
Mr. L. Jarvis - Personnel Officer
Hamilton Psychiatric Hospital
Ministry of Health
Hearing
Westbury Hotel, Toronto, Ontario, January 22, 1976
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1.
The grievance brought t.ythe Union on behalf of Mr. R. .Irwin
before this Board raises a rather narrow and unique issue as to
whether the employer is required to make certain pension contributions
on behalf of Mr. Irwin. There being no challenge to this Board's
jurisdiction nor to the procedure by which this claim was being asserted,
the circums~tances giving rise to this qrievance, which were also not
in any material sense in dispute between the parties,may be briefly
summarized at the outset:, -?_
Mr. Irwin was, during the period he was on the Ministry's
active payroll, employed as a Buildings Cleaner and Helper 2R at the
Hamilton Psychiatric Hospital. However, owing to an arthritic spinal
condition Mr. Irwin was. not able to perform his regular duties and
accordingly was required to leave work as of May 14, 1974. It is agreed,
for purposes of this award that since-that date he has remained off work'
until the present and that there is little likelihood that he will ever
be able to return to any gainful employment with this Ministry. However,
when Mr. Irwin had been off work as a result of his physical disability
for a period of six months he became,entitled to certain benefits pro-
vided for under the Long Term Income Protection Plan (L.T.I.P.) which
is set out in Appendix 5 of the Master Collective Agreement. Thus on
February 17, 1975 Mr. Irwin beganto receive certain payments under the
L.T.I.P. plan which were made retroactive to and effective from November
14, 1974,, which was the date he had satisfied the six month waiting
period under the L.T.I.P. progratnne. There is not new, nor has there
ever been, any dispute as to Mr. Irwin's right to receive those payments. _I
2.
What is in dispute and is at issue in this grievance brought
by the union on behalf of Mr. Irwin, is whether in addition to those
disability payments, the employer is also obliged to make certain
pension contributions on behalf of Mr. Irwin from and after November
14, 1974 being the period he was in receipt'of the L.T.I.P. disability
benefits. In this regard, there is no dispute that Mr. Irwin is not
entitled to have the employer make these pension contributions for.the
period from when he actually left the employer's active ~payroll on
: July 1, 1974 until November 14, 1974 when he"~qualified for the L.T.I.P.
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programme. Further, there is no dispute that because of certain sick
leave and other credits, Mr. Irwin was kept on the active payroll until
June 30, 1974 and the employer did make the necessary pension contrib-
utions from May 14, 1974 until that time: It is, however, the union's
claim that on qualifying for the L.T.I.P. programme on November 14, 1974,
Mr. Irwin was entitled not only to receives the disability'benefits, but _
"~ as well to have the employer make the required pension contributions on ~,~
his behalf for such time as he qualified under the L.T.I.P. programme.
The positions of the parties with respect to this issue were, on
their face, equally succinct and straightforward.~ In essence, the basis
of the union's claim lay in what it described'as the plain language of
Appendix 5 of the collective-.agreement referred to above. That agree-
ment, having.its genesis in an interest arbitration award dated June 12,
1974 was made retroactive to and bears the effective dates of
October 1, 1973 .until September 30, 1975. That appendix dealing
generally with "Employee Benefits" provides in one of its parts for
a Long Term Income Protection Plan in the following terms:
.Lony Term Income Protection
The employer shall pay, effective with the implementation
of the new plan, seventy-five percent (75%) of the monthly
premium of the Long Term Income Protection Plan (L.T.I.P.)
The L.T.I.P. benefit is sixty-six and two-thirds percent
(66-2/3%) of qross salary reduced by the total of other
disability benefits payable under any other plan toward
which the employer makes a contribution, payable until
the employee recovers, dies, or reaches 65 years of age.
The employ'er will provide a continuing accrual of normal
~retirement benefits while the employee receives L.T.I.P.
benefits under the new plan.
The employer shall grant leave-of-absence with pay up to
15 days in any attendance year to an employee who has
exhausted his attendance credits, vacation credits,
overtime credits and U.I;C.-credits prior' to becoming
eligible for L.T.I.P. benefits, and the period of the
leave shall .'be deducted from future credits which he
may acquire through subsequent employment.
A record of employment if required in order to claim
Unemployment Insurance Conmission sickness and
disability benefits'will be granted to an employee and
this document shall not be considered as termination of
employment.
The union's position, Avery simply,is.that pursuant to the third paragraph
described above, Mr. Irwin, beinga person who was in receipt of L.T.I.P.
disability benefits, was manifestly entitled amongst the other benefits
described therein to have the employer "provide a continuing accrual
of normal retirement benefits" for so long as he continues to receive
L.T.I.P:benefits. That is, the union argued that until such time as
Mr. Irwin recovers from his disability, dies or reaches 65 years of
age, the employer is obliged to make the required contributions towards
his normal retirement, benefits. In short, it was the position of the
union that regardless of Mr. Irwin's employment status, his right
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to oblige the employer to make the necessary pension contributions
was, by the terms of the agreement, made conditional upon the
single criterion of whether he fell within the ambit of the L.T.I.P.
programme which, as noted, was not denied by the employer.
The basis on which the Ministry denied the claim made on
Mr. Irwin's behalf, both in reply to this grievance and at the hearing,
,was founded on what it conceived to be equally clear and compelling
language which is contained in certain legislative enactments. In the
first place the Ministry referred this Board to s.l7(l)(b) of The
Crown Employees Collective Bargaining Act S.O. 1972c.135 as amended which
provides:
17 (1) Every collective agreement shall be deemed to
provide that it is the exclusive function of the
einployer to manage, which function, without limiting
the generality of the foregoing, includes the right
to determine,
(b) merit system,'&ining and de&lopment, appraisal
and superannuation, the governing principles of
which are subject to review by the employer with
the bargaining agent,
and such n&atter.s will not be the subject of collective
bargaining nor come within the jurisdiction of a board.
In addition the, Ministry directed this Board's attention to s.20a(2) of
The Public Service Superannuation Act R.S.O. 1970 cl35 as amended,
which stipulates:
2Oa. (1) in this section, "approved long term income
protection plan" means a plan established pursuant to
The Public Service Act.
(2) ~Where a contributor who is not in receipt of an
allor+mce or annuity under this Act and whose disability
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was incurred on or after the 1st day of July, 1974
.has qualified for a benefit under an approved long
term income protection plan, whether or not he is
in receipt of such benefit, a contribution shall be
made to the Fund on behalf of the contributor, out
of moneys appropriated therefor by the Legislature,
for each month or part of a month in respect of
which the contributor continues to qualify for such
a benefit and the contribution shall be 6 per cent
of the.salary authorized to be paid to <he contri-
-. butor in the month ,immediately prior to the month in
which he qualified for the benefit. ~.'
It is a matter of record that s.20a of this latter Act.was enacted
in S.O. 1975 C73 s.10 and was deemed to come into force on January
1, 1975. Put simply, it was the position of the employer.that
these tro sections precluded the union's claims that Mr. Irwin was
entitled to accrue pension benefits..awhile he was on the L.T.I.P.
prograrrme. That is, the employer argued that by virtue of 5.17 (1)
(b) of The Crown Employees Collective Bargaining Act "superannuation"
is a matter within the' exclusive prerogative of the employer a@ as
wel,l may not be the subject of collective bargaining nor come within
the jurisdiction of's board. Further, and by virture of s.ZOa (2)
of The,Public Service Superannuation Act, the Ministry argued that
it was-manifest, in providing for the contribution by the employer,
to anemployee'spension fund, that the Legislature has specifi.cally
limited.the employer's obligation to make such contributions to those
persons whose disability "was incurred on or after the lst.day.of July,
1974". Thus, s.20a(2) being the only basis.an which.the claim made on
behalf of Mr. Irwin.could be asserted by virture of's.l7(l)(b) of The -
Crown Employees Collective Bargaining,Act, it necessarily follo&d he
had not met the condition setout in s.20a(2) and therefore was not
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entitled, to the accrual of pension benefits while he was in the L.T.1.P .
programme. Indeed and to demonstrate .the consistency and cogency of his.
argument, the employer conceded that had Mr. Irwin's disability
occurred on or after July 1, 1974 rather than on Fnay,l4., 1974 the
employer would have been obliged to make the.required contributions.
In fact that concession is also implicit in the reply to the'grievance
sent by Mr. R. Oss, the Ministry's Director of Personnel, on November
28, 1975 in which reference is made to s.2Ca (2) and'to the date of
Mr. Irwin's disability.
i ..~ The issue then is clearly drawn by the respectivepositions 7&y,
of the parties. In one sense, the grievance appears to throw into
sharp relief'an apparent conflict between the provisions in the collect-
ive agreement on which the union relies in asserting its claim and the
legislative enactments to which the employer turns to justify its
denial of this grievance. On closer analysis, however, we believe
that such a tension is more apparent than real. That is we are of the
view that when-each of these provisions is carefully considered they
._ can be reconciled both in their language and in their effect.
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In the first place, aswe have noted, the employer's rejection .
of this grievance is ultimately founded on the fact that Mr. Irwin's
disability was incurred prior to the operative date which is set out
in s.2Oa (2) of The Public Service Superannuation Act and on which
entitlement to-the accrual of pension benefits is conditioned. As
we have described, the necessary and logical corollo~ry to that assert-
ion and which is implicit in Mr.. Oss's reply to the grievance and
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which was made express by the employer at the hearing is that had
Mr. Irwin's disability occurred on or after July -1, 1974 her would have
been entitled to claim the pension contributions~the bunion is seeking
in this present grievance. However, it is apparent from.s.20a(2)
that the operative date of July 1, 1974 only applies to persons who
have qualified for a benefit under an "approved long term income
protection plan". In turn, s.2Ca (1) of the same Act provides that
such a plan means a "plan established pursuant to The Public Service
Act". When reference is made to that latter Act, the.only express
referenc~e to such plans is contained in the Regulation section, which
provides:
,;,,.: 29. (1) ~The,Conmission, subject to the approval of
the Lieutenant Governor in Council, may make
regulations,
(g) prOvidiiIg for the establishment of plans
for group life insurance, medical-surgical
insurance or long-term income protection
insurance;
In turn and following this circuitous route that has been mapped lout
by the 1egislature.a review of the regulations passed under that Act
reveals that 0. Reg. 1013/75 being a regulation to amend Regulation 749,
R.R.O. 1970, and which was approved on December 17, 1975, does indeed
contain a specific reference in Part VI, ~~85-86 to a Long Term Income
Protection Plan. However, and what is even more critical to the
determination of the grievance before us, is s.68 of those same
regulations. In that latter section, and more particularly in part
(e) qf that section, it states:
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Part VI
BENEFITS
68. In thisPart,
(e) "employee" means a civil servant who is
not within a unit of employees &stab-
lished for collective bargaining in
accordance with any Act;
In short, 5.68 (e) of these regulations expressly provides that persons
such as Mr. Irwin,,who is without questibn a civil servant who is in
a' unit of employees established for collective bargaining, are not
covered by nor entitled to claim under the Long Term Income Protection
Plan provided for in ~5.85 and 86 of these same regulations. Necessarily
then when.S.:O, 20a(2).refers to a contributor whose disability has
qualified them for a benefit under an approved long term income
protection plan it is referring to a plan which by virtue of s.20a(l)
of The Act and ,s.68 of O.Reg. 1013/75, manifestly does not and can not
apply to Mr. Irwin. That"conclusion in turn must inevitably lead~one
to the conclusion that the disability date of July 1,.1974 which is
made a condition precedent to entitlement,~to the pension rights provided
for in s.20a(2) apply to a long term income protection plan which by
its plain terms, has no application to Mr.-Irwin. kven the employer's
concession that but for the July 1; '1974 disability qualification date
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set out in,'s.20a Mr. Irwin would have been entitled to the accrual of
pension credits, it must follow, on that ground alone, that this
grievance must succeed. Very simply, in light of the employer's candid
admission noted above, once it has been determined that the July 1, 1974
qualification date applies.to persons who are on a long term income
protection plan which by its express terms has no application to
persons such as'~Mr. Irwin, it is manifest that the qualification date
which is part of those same plans cannot be raised to bar the claim
being made on behalf of Mr. Irwin. There being no evidence before
this Board, and the employer's and Mr. Oss's concern would suggest
that such evidence does not exist, that the LiT.1.P. plan described
in the collective agreement and under which the claim on behalf of
Mr. Irwin is being made, has no similar qualification date, it must
follow that this grievance is entitled to succeed.
In the circumstances of this case the reasoning above is
sufficient to dispose of the Union's grievance.. However; and in
fairness to the.parties, there is at least one other basis on which
the same result can and must be supported. As we have described it
was the position of the Ministry that regardless of the meaning of
the paragraph in the collective agreement on'which the union relies to
support its claim, such a provision, being a matter of superannuation,
must be said to,,be of no force and effect in light of the statutory
prohibition in s.l7(l)(b),of The Crown Employees Collective Bargaining
Act against bargaining about such matters. On this level of analysis -
the determination that faces this Board ultimately requires us to
characterize the' purpose and effect, or the "pith and substance", of
the relevant provision in the agreement to determine 'whether it is
more properly to be regarded as a matter relating to long term income
protection or to superannuation. That is if the paragraph in question
were to be characterized as one feature of a long term income protection .~ :.-
programme, then by virture ofs.6 of The Crown Employees Collective
Bargaining Act manifestly it would be withinthe competence of the
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parties to negotiate such a provision. However, if it were'determined
that such a clause was more properly to be regarded as dealing with
matters of superannuation, then equally clearly an issue would arise
as to the legal effect of the statutory pronouncement in s.l7(l)(b).
In making such a determination, the analysis to be applied
by this Board is one that.our courts and other administrative
tribunals such as ours are commonly called upon to make. In such a
case, the court or tribunal his required ultimately to make a
determination as to the true or fundamental nature or character of the
document or legislative enactment which is in issue before them.
Commonly arising in but not limited to in cases testing the constitutional
validity of certain pieces of legislation, it is said that the
adjudicator's task is to determine the "pith and substance" of then
legislation before them. Recognizing that there is a strong analogy
between then function performed by the courts in passing on the "pith
and substance" of a piece of legislation and the task performed in
other context when the true nature of a document or other writing.%
in issue,it is instructive to make reference to the following passage
in Laskin's Canadian Constitutional Law, Abel (ED) Revised fourth
edition,~where at page 98 the authors state:
Each measure has its own. 'matter'.
That quality has been well-described as a concern with
'the pith and substance' of the statute. The working
out of what the notion expresses should be the first
step in resolving issues of legislative competence in
the Canadian.consti~tutional scheme. All too often
recognition that this is what is involved has led
immediately to a characterizing conclusion without'any
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connecting demonstration. Good as it is for
intuitive judgments to state accurately what they
are being intuitive about, that they are intuitive
is a basic flaw. We need to know how the conclus-
ion about a law's pith and substance was arrived
at.
In having its distinctive 'matter,' its own pith
and substance, a statute is just like any other'
written text. True, it is distinguished among
written texts as being one which is an expression,
of legislative will. E&t, for determining the
'wtter,' not that specific feature but its generic
character is relevant. Like any written text, its
m3tter depends on what it says read in the context in
which it speaks. . _
Before ruling whether a trust is charitable or not
with whatever consequences ensue, it is the regular
practice toinvestigate what kind of provisions it
makes for whom. The operative consequences of its
particular term are explored before determining
whether a writing yives rise to a sale or a security
arrangement. The tenor of its own particular claims
falls to be assessed where the scope of protection
under a patent is.to~be determined. Always the pith
and substance,~the 'matter' of the writing is a
threshold inquiry, which precedes and should proceed
independently of the content of the competing legal
categories whose application flows from it. Indeed
the'same processes are appropriate for any writing
whether with or without a legal bearing. Whether for
sermons, statutes, sonnets, surety bonds, or scientific
reports, epitomization, however..various in purpose, is
achieved the same way.
Applying that method of analysis to the provisions of thecollective
agreement referred to at the outset of this award, it is manifest to
this Board that by their terms, those paragraphs including the one
in issue in this grievance, plainly are matters whose "pith and
substance" pertains to long term income protection rather than to
superannuatjon.--:On-:one level, and in the context of Appendix 5
generally and of these particular paragraphs, it appears to this
Board that taken as a whole, the paragraphs quoted simply describe
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various features that are part of the long term income protection.
plan agreed to by the parties. On this level the first paragraph of
the agreement stipulates the cost sharing arrangement between employer
and employee for the plan; the second describes the amount of dis-
ability income to which persons who qualify for the programne will be
entitled and for how long; the third being another form of income :..
protection, provides for the continued contribution to pension benefits
by the employer for such persons who are in the programme; the fourth
again in the nature of income protection guarantees such persons certain
benefits prior to their becoming eligible for the payments under.
L.T.I.P. and the final paragraph pre~serves some employment security
for persons suffering from such severe disabilities. Common to
each of these paragraphs is that, as a package, they attempt to provide
in various ways for long term income protection for persons who are
seriously disabled. From this perspective in one sense the paragraph
in issue simply provides a particular form of income protection for
persons who are eligible for the L.T.I.P. disability benefits described
in the preceding paragraph. Put another way, the third paragraph
simply preserves the employment status of such persons as if they were
active employees, for'purposes of accruing pension benefits. Looked
at from still another perspective, the operative consequences of its
terms are limited to persons who are in receipt of L.T.I.P. benefits
and provides that the employer is obliged to continue to make the
required contributions to their normal pension or retirement benefits
as if they~were active employees. Put negatively, nowhere in this
part of-the agreement generally, nor in the third paragraph in particular
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13. (8.:~ @J i have the parties purported to negotiate the substantive terms of a
superannuation plan such as the cost sharing arrangement, the level
of contributions, the age or terms on which persons become entitled
to, or disqualified from, the superannuation programme, or the methods
~by which the pension is to be calculated orannuities constructed. To
the contrary all of these fundamental and core provisions which~ could
be said to be the "pith and substance" of superannuation are accepted ~~
as given hy the parties in the phrase "normal retirement benefits".
Very simply rather than embracing the substance of a superannuation
;,:::y, plan, this paragraph seen in the context in which it appears, while ,qii:-. 5.;::J
admittedly having incidental effects which relate t0 superannuation, ~.X
nevertheless has as its pith and substance the matter of providing a
number of different and in one sense disparate forms of income protect-
ion for persons who by their disability have qualified for the L.T:.i.P.
disability programme. That is and just as these provisions in the
agreement presently provide for certain rights, beyond the actual
disability payment, includ.ii$ certain benefits even before one is
eligible for L.T.I.P., so too the parties might well have logically
. a~nd rationally included in this section of "employee benefits" the
right of such persons to personally grieve certain matters with respect
to their disability benefits or to accumulate seniority credits during
the period they remain in the L.T.I.P. programme. Such provisions,
conmon in the ~private sector,must as the passage quoted above
advises, take their meaning from the context in which they are found
and would not, we believe, be properly characterized as '!gt-ievance"
or "seniority'! matters mereiy because they may incidentally and
I' necessarily pertain to seniority or grievance rights. Again we would
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advert to certain passages in Laskin's Canadian Constitutional Law
which~, given the earlier passage quoted above, we'believe are useful
in ana.lyzing the problem at hand. In these latter passages in asking
the question of whether one should, in determining the character of
a particularpiece of,lepisl'ation (or document), focus on the whole
of the document or rather on particular passages in issue between
the parties, the authors advise, (p.98-99):
A topical catchword seldom if indeed ever adequately
specifies the "netter" of a statute. That exercise is
inherently more complex. It amOunts to an abstract of
the statute's content, i&taxing the subjects or sit-
uations to wh~ich it applies and the w2ys it proposes
to govern them, spelled out sufficiently to inform
anyone asking, 'What's it all about?' .,Narrow statutes
admit of sharper answers to that question; comprehensive
0ne.s demand broader and more generalized ones; but in
either case there normally will be some central theme
which can be appropriately paraphrased to complete the
sentence. "This Act provides . _ .' Matter" is synonymous
with the true, .full, and exact summarization which does
so....
The typical statute is a composite, assembling nany
specific and detailed provisions into a si~nqle package,
separating them into parts and sections, each with its
own norsel~ of meaning. Since'ordinary litigation arises
out of the attempt to apply some one provision and even
many references have addressed themselves especially to
desiqnated.portions, one must start by settling OR the
pith and substance of what is relevant.. ..:'
The alternatives are to view the statutg'as an integrated
-whole or to disaggregate it,into components of any
desired size. Is one inspecting the forest or the trees?
Whether th& gaze is to be fixed intently on a section
banning the manufacture, selling, keeping, or offering
for sale, or importing of margarine or whether the field
of vision shall instead t+e in a qreat~sprawlinq statute
concerned with many phases of and operations in .the~ pro-
cessing for market and narketinq of dairy products may be
decisively important. No discernible general logical
compul~sion favours either the broad or the narrow approach.
,*%he presumption of constitutionality - more talked about
in the united States than in Canada - may here find its
place. In any given case choice is for the court and lies
within the large realm of judicial discretion where demon-
stration of error is difficult. What is blanxzable is the
very general failure to indicate the existence and nature
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of the alternatives with the fullest possible
exposition of reasons for preferring one, a
failure rather aggravated than excused by
unawareness. . . . .
And finally, in a passage particularly relevant to the grievance
before us the authors state: (p. 100)
-.
Conversely, although. the pith and substance of the whole
statute be such as to come within-an available class of
subjects, the separately considered matter of a particul-
ar provision might not. What governs? Does the good
redeem,.perish with/or survive the bad? The principle
of redemption underlies the doctrine of ancillariness.
The doctrine of severability comes into play to determine
the issue of quilt by association or salvation by dis-
sociation. While both ancillariness and severability
are familiar terms in Canadain constitutional discourse,
with neither perhaps has its significance been clearly
enough recognized as being in connection with defining
the relevant 'matter'. Some attention to each is in
order.
The ancillary doctrine is used when the pith and
substance of the whole statute has been defined so as
to legitimate it, never to make the 'matter' of a
particular provision spill over onto its companions.
Adverted to nxxtly but not only in connection with
federal legisl~a tion, it applies, after a statute has been
read as in pith and substance dealing with matter found
to c&e within an allowable class of subjects, to
validate component provisions which (by hypothesis or
prima facie) looked at alone, deal with matter having a
more dubiotis status.. In effect.it polarizes the statute
so that no part of.it is conceived as having an independent
direction but all are seen as pointed toward the one
central IlEtter. It has been criticized as an unnecessary
and insubstantial complication. If it be understood as
sanctioning a shifting around of the boundaries of classes
of subjects to suit occasional convenience (a reading
which the context of its use at times suggests), the
criticism is apt. But if, as is my submission, its Office
is in connection
with definition of the 'matter' of the
statute, for that purpose supressing the special tendencies
of special provisions and treating all of them as merely
elements in the common structure, 'it is intellectually
serviceable. under what circumstances that will be done
is another. question, resembling and..sometimes blurred into
that.already noted of whether to look to the nxtter of the
whole statute or of the Golated provision as the key
question and, like it, leaving much room for judgment.
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In sum and to paraphrase those quoted passages we are of the
view that the true, ~full and exact character of these provisions
are a series of protections secured by the union for persons suffering
from long term disabilities. The paragraph in dispute merely seeks
to protect such a person's income, for purposes of his pension, by,
in effect, requiring the employer to treat the period he is part
the L.T.I.P. programme as if it were a period of active employment
for the purposes of discharging their obligation to pay the required
pension contributions for their staff. Given the presumption of
"constitutionality" described above, which in this context would
translate into a presumption thats.l7(l)(b) on the one hand and
s.6 and~this paragraph on the other can co-exist and not conflict;
demands the conclusion that the parties have in the disputed paragraph
simply qbliged the employer to make the required normal pension
contri~butions to persons who are eligible for the L.T.I.P. programme :
as if they were still gainfully and actively employed. It is in
its essence simply another form'or manner in which.the income of
such persons can be protected. That presumption of co-existence,-
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together.with our determination as to the "pith and substance" of
this portion of theagreement has in effect led us to reject.what is
implicit in the Ministry's argument that the disputed paragraph is
independent of and.severable from the other provisions in the agreement
which also deal with long term income protection for severely disabled
persons.To accede to the Ministry's conclusion would, we believe, be to
misconstrue the pith and substance of'the provisions in the agreement
dealing with long term income protection and would require one to
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focus on a single paragraph in this section of the agreement, to the
exclusion and indeed denial of the context in which it arises.
In the result and for either of these reasons we have determined
that this grievance must succeed. Although there wassome suggestion at
the close of the hearing that the parties might not beg agreed as to
whether the phrase "normal retirement benefits'! included the obligation
to provide paid pension contributions, on the evidence before this
Board, in particular Pr. Oss's letter of November 28, 1975, and indeed
on the agreed statement of facts, we can only conclude that the parties
did intend to include such benefits in the phrase "normal retirement
benefits". Further, and if our conclusion that on the evidence before
us there was such a shared intention to make such contributi,ons for
persons such as Mr. Irwin is erroneous, that fact will make itself ..
apparent when the parties are in receipt of thisaward and seek to
implement its findings. In this respect, although we were assured ~'.
it most probable that the parties,wouTd be able to compute the sums due .~ I
and payable by the employer.on behalf of Mr. Irwin we were asked and
will retain jurisdiction to resolve any dispute with respect to the
implementation of this award should,that prove necessary.
In the result and for the reasons given, this grievance must
succeed. Accordingly we would order the employer to make those pay-
ments towards Mr. Irwin's normal retirement beneifits from November'l,
-
1974 and to continue to make those contributions as awardrd for in
Appendix 5 of the collective agreement.
Dated at Toronto this 10th day of February 1976. .
I
D.M. Beatty
Chairman
I concur
G.K. Griffin
Member
I~ concur
P.A. Sigurdsori
Member