HomeMy WebLinkAbout1976-0074.Cupe.77-10-2774/76
CROWN EKPLOYEES 416/964 6426
GRIEVANCE SETTLEMENT
GOARD
Suite 005
77 Bloor Street Vest
TORONTO, Gntario
;45s 1M2
IN THE MATTER OF AN ARB~ITRATION
Under The ~. -. ~~ -~~
CROWN EMPLOYEES COL:ECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: Ontario Housing Corporation Employees Union Local 767 CUPE
And
Ontario Housing Corporation
Before: K. P. Swan Vice-Chairman
E. J. Orsini Member
D. Anderson Memb.er
For the Grievor:
Mr. P. J. O'Keefe
Assistant Regional Director
Canadian Union of Public Employees
For the Employer:
Mr. A. P. Tarasuk
Central Ontario Industrial Relations Institute
Suite 200
85 Richmond St. W., Toronto, Ontario
Hearing:
September 30th, lg77
Suite 405, 77 Bloor St. W.
Toronto, Ontario
2.
This grievance poses two questions about the correct
interpretation of the vacation provisions of the agreement which was
in effect at the time at which.the grievance was filed, namely the
agreement effective from January 1, 1975 to December 31, 1975, which
continued in effect beyond the latter date by virtue of s. 21(2) of
the crown employees collective Bargaining Act. Those questions are:
',.
1. Does the expression "total e&nings for the
vacation year,"upon which- vacation pay is --.". calculated, include, any vacation pay received
during that year? i
2. IWes an employee have to receive his vacation
pay at the time of taking vacation leave, or
may the pay be claimed as soon as it accrues?
The collective agreement provisions from which these questions
arise are as follows:
ARTICLE 17 - VACATIONS
17.01 For the purpose of calculating vacation leave and vacation pay
service years will be computed from July 1 in each year to
June 30 of the following year inclusive.
17.02 Vacation and vacation pay will accrue on the following basis:
i) for less than one year of continuous
service as of June 30ti.01~ day of
vacation leave for each full completed
calendar month of servi’ce up to a maximum
of ten (10) days and the employee shall
be entitled to receive as vacation pay an
amount equal to four percent (4%) of his
total earnings for the vacation year.
ii) for one (1) year but less than two (2)
years of continuous service~.as of June 30th,
ten (10) days of vacation leave and four
iii)
iv)
3.
percent (4%) of his total earnings for the
vacation year.
for two (2) years but less than fifteen
(15) years of continuous service as of
June 30th fifteen (15) days of vacation
leave and six percent (6%) of his total
earnings for the vacation year.
for fifteen (15) or nvre.yea?s'of continuous
service as of June 30th twenty (20) days of
vacation leave and eight percent (8%) of
his total earnings for the vacation year.
v) :; \
17.03 Vacation leave and vacation pay as accrued in accordance
In the administration and imple&ntation of -.~ the provisions of this, article, no employee
shall receive less va&tion leave or entitlement
that-he would receive~if the- provisions of
the collective agreement which expires on
December 31, 1974 were in effect.
with Section 02 above must be taken within ten (10)
calendar months after the end of the vacation year in
which the vacation was accrued unless the Employer and
the employee mutually agree to extend the period during
which vacation may be taken. In any event, vacation
leave and vacation pay must be taken before the end of
the second vacation year immediately after the vacation
has accrued. Vacations~.will normally be taken in an
unbroken period.
ARTICLE 21 - PAYMENT OF WAGES
21.01 Wages one week in'arreai-s shall be paid on a two-weekly
basis. Where the regular pay day falls on a designated
holiday the employees shall be paid on the day preceding
the holiday. An employee will be provided each pay day
with an itemized statement of wages and deductions
therefrom.
21.02 VACATION PAY
Employees may, upon giving at least ten (10) working days
notice, receive on the last office day preceding commence-
ment of their annual vacation any~cheques which may fall
due during the period of their vacation.
4.
21.03 PAY DURING TEMPORARY ASSIGNMENT
When an employee is required to perform the duties
of any higher position than that previously occupied
by such employee for a period in excess of fifteen
.(lS) gnutes in one (1) day, the corresponding rate
of pay for such higher position shall be paid for
the who& period during which time duties at the
higher level were performed. If +n,employee is
required to substitute for an employee is receiving
a lower rate of pay than the substituting employee,
then the pay of such substitute shall not be changed .~
provided that the substitution is of'.not nore than
three (3) wee.& duration. ~,
i; \ -.,
? .'.. The first issue is one which has arisen in a number of
arbitration decisions in the private sector, and there is thus some
jurisprudence available on the subject. The union submitted, and we
agree, that this jurisprudence indicates a growing trend towards
an interpretation of such expressions as "total earnings" which would
find them clear and unambiguous, and which would include within their
scope any vacation pay received during the period over which earnings
are calculated. The rationale.for this approach is perhaps best stated
in the award in me Pilkington BOOS. (Canada) Ltd. (1966)‘ 17 L.A.C.
146 (Arthurs), at page 1jO:
What the union obtains in.the area of
vacation pay is usually "purchased" by the
sacrifice of some other monetary demand,
such as an additional statutory holiday,
a fringe benefit, or wages. All of these
- - - are "earned"; together they represek
the total compensation which an employee
expects to receive, and the employer expects
to pay, as the labour cost of production.
Therefore, fromthis reasoning (which we respectfully adopt), the word
"earnings" would normally include vacation pay received during the
period over which earnings dare calculated; the expression'kotal earnings'
6.
vacation year" must relate to the time at which some right accrues to
an employee rather than the time at which the "earnings" are actually
received. In fact, the accrual apparently depends entirely upon
completion of the vacation year, that is, it occurs at the completion
of work on June 30th. Given tha~t, it is:% considerable extension of
the meaning of the word "earnings for the.vacation year" to,:~.say that
vacation pay must necessarily refer to the-twelve month period before
>: \. -~~
the accrual rather than to the twelve month period after the accrual ; -: during which the money was actually rec~eived. We are therefore of
the view that the union's position is correct, and that vacation pay
should be calculated on all sums received as earnings in the vacation
year on which the pay is based.
As to the second question, the union's argument is that,
because the words "vacation leave and vacation pay" set out leave and
pay as two separate items, employees ought to be able to take the
two aspects of vacation separately. They ought, for example, to be
able to claim vacation pay forthwith as of each July 1, while re-
serving vacation leave until some later suitable time.
We are convinced by the employer's arguments on this matter,
and consider that on an ordinary reading of.the expression "vacation
leave and vacation pay" the clear meaning is that they should be
concurrent. The adjective "vacation".would hardly be appropriate to
define pay if it were merely a service bonus accruing each year. In
using the words together, we are satisfied that the parties intended
the two benefits to be taken together. In this result we are supported
5.
would, a fortiori, also include such amounts.
There are, however, certain cases which identify language
which can create exceptions to this general principle, and it is
the employer's position that the present._c_ase is also an exception.
Mr. Tarasuk advanced a number of foundations on which, he submitted,
we could base such a conclusion.
First, the expression set out in-Article 17.02 is "total
-b
-~earnings~for the-vacation @' -- ,. ind then vacation year, defined as a
period "from July 1 in each year to June.30 in the following year
inclusive" in Article 17.02 must clearly have ended (see Article
17.03)before the vacation may be taken. Thus vacation taken (and
vacation pay received)during one vacation year, as defined, will
always have been earned in the previous vacation year rather than in
the year in which it was actually taken, and ought not therefore to
be considered to be earnings "for the vacation year". As authority
for the proposition that.vacation vests (and is thus fully "earned")
at the end of the qualifying period, Re Falconbridge Nickel Mines
Ltd.(1973), 3 L.A.C. (2d) 409 (Weatherill) was cited. The second -
and third arguments,, based on the interpretation of the word
"earnings" and on inferences to be drawn from the calculation of
vacation pay based on years of service, appear to us to be much
less tenable than the submission set out above.
Although we consider it to be a borderline case, we are
unable to accept the employer's position that "earnings for the
7.
by the award in Re Northern Electric Co. Ltd. (1975), 8 L.A.C. (2d)
385 (Palmer).
In the result, therefore, the grievance is allowed as to
the first question and denied as to the second.
The union i,ndicated that some consequent relief would flow to
individuals from an affirmative answer to.t.he-first question. Ne are
*i\ ,. informed that the parties can settle thisLj<sue and we therefore leave.
-~- .it to them for calculation, retaining jurisdiction only to the extent
that may be necessary to resolve any issue as to compensation.
Dated at Toronto this 27th day of October 1977.
K. P. Swan
Vice-Chairman
E. J. Orsini
Member
I conc".r
D. Anderson
Member